This Week in Family Law
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Each week, we discuss the latest industry news, deep dive into family law topics, analyse cases, and answer questions from family lawyers. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.
This Week in Family Law
Bonus: Estoppel, power in interim orders, fate of Robb & Robb
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In this bonus episode of This Week in Family Law, we discuss topics that have been given some airtime with recent Full Court and Div 1 decisions including estoppel in property cases where there have been findings about family violence in earlier proceedings, identifying the power when making interim financial orders, and the fate of Robb & Robb after the 2025 property amendments. This is part one of a two-part series with The Honourable Garry Watts AM.
Chapters:
0:00 - Introduction
0:52 - Estoppel
5:55 - Identifying the Power in Interim Financial Orders
12:42 - The fate of Robb & Robb
Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.
About the podcast:
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.
Case List:
Bhaget & Sandhu (No 4) [2005] FedCFamC1F 229 (Schonell J)
Damaini& Damaini [2010] FamCA 217 (Watts J)
Benson and Drury [2020] FamCAFC 303
Voight and Zunino [2025] FedCFamC1A 201 ( Austin, Schonell and Curran JJ)
Shinohara[2025]FedCFamC1F 122
Zschokke [1996] Fam 79;
Marchant [2012] FamCAFC 181
Nguyen [1990]HCA 9
Strahan [2011] FamCAFC 126
Harris [1993] FamCA 49
Robb and Robb [1994] FamCA 136
Cherokee & Cherokee [2005] FedCFamC1A 191 (Christie J)
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Welcome to a bonus episode of this week in Family Law. I'm Jenning Demely and I have back with me today the Honourable Gary Watts. Welcome back, Gary.
SPEAKER_01Thanks, Jenna. Nice to be back.
SPEAKER_00It's nice to have you back again. This is part two of our two-part series where we talk about recent cases in the Full Court and DIV1. We will talk about the stoppel in property cases where there have been findings about family violence in earlier proceedings, identifying the power when making interim financial orders, and the fate of Rob and Rob after the 2025 property amendments. We will provide viewers with a list of cases in the show notes as well. Now, Gary, let's first talk about estoppel. Sometimes it happens that parenting and property cases are bifurcated. And in the earlier parenting hearing, evidence about a history of family violence between the parties has been explored and findings made. The issue of estoppel was considered in a recent case of Bargett and Sandu. What happened in that case?
SPEAKER_01Well, what happened is that in prior proceedings in relation to parenting, the wife had made uh a set of allegations about family violence, and uh that case had been heard. And in the trial judge's findings, he didn't uh address family violence uh in his judgment. Uh so he made no findings about those allegations. In the property case, the husband uh was m uh uh facing a claim by the wife under uh Kenan, uh under a Kenan argument. Uh so this was a case prior to the 2025 amendments kicking in, but it would apply exactly the same today because the 2025 amendments did nothing but codify the case law that existed prior to the the amendments. Um and what the husband argued was that the wife was stopped from running the Kennan argument in this property case because she'd already raised allegations of family violence in the parenting case uh and the judge had made no findings about them.
SPEAKER_00So what did Justice Chanel do with the husband's argument in this case?
SPEAKER_01Well he rejected it. Uh he rejected it primarily because uh of the fact that no findings had been made. So uh there was uh no uh uh basis for an argument of a stoppel, uh and he allowed the the wife to run her Kennan case, which uh she ultimately was successful in doing.
SPEAKER_00So the wife was able to present evidence about family violence in this case?
SPEAKER_01Even though she'd presented it in the parenting case, yes.
SPEAKER_00On the other side of the coin, have there been cases which have held estoppel arises when findings about family violence are made in earlier parenting proceedings, and that those findings are binding on the parties in a property case and cannot be relitigated?
SPEAKER_01Yes, that's sort of the other side of the coin. And there have been some cases. Um in 2010, um I did a case called uh Damani, and in that case there were very serious findings made by Justice Rose in parenting proceedings between the two parties, um, finding that the husband had committed serious family violence. Um it came before me for the property hearing, the husband um argued that he should be able to relitigate the allegations of family violence uh in the property proceedings before me. The wife claimed he was stopped from doing so because Justice Rose had made findings um about uh the allegations of family violence, and she shouldn't be put to the pain and trauma of relitigating all of that evidence again. Uh and I accepted her argument about that. I accepted Justice Rose's findings uh as part of the evidence in the property case, and again, the wife was successful in her Kenan argument in that case.
SPEAKER_00And that case that you mentioned, I believe, is a first instance decision. Is there a full court decision?
SPEAKER_01That's rubbing it in a bit. Um look, there is full court authority. I was involved uh in the fairly well-known Kenan case of Benson um and Drury in 2020. And what happened in that case was Justice Berman, very similarly, uh, had made serious um findings of uh uh about family violence against the husband in the parenting proceedings. And then when it came to the uh property proceedings, that trial judge had relied upon Justice Berman's findings um in uh the property case, and uh the husband was stopped from attempting to rerun the family violence hearing uh in the property case. So that's full court authority for you.
SPEAKER_00Thank you. I'm sure our listeners will be very pleased. Next we'll talk about identifying the power when making interim financial orders. Gabriel, I wanted to talk to you about the case of Voigt and Zanino, um, in which the full court made strong statements about what senior judicial registrars and judges need to do when making orders for payments of money by one party to another on an interim basis. But first, this case has become somewhat well known for another reason.
SPEAKER_01Yes, you're probably referring to the fact that this was uh an early decision of the full court after Shinihara, where they upheld the appeal and had to re-exercise discretion. Um, it was a case where there was a $300,000 payment that had been made by one party to the other, and they had to take that into account. The reason it's become infamous is that the full court just messed up the mathematics when doing that and demonstrated uh how difficult uh it is in the post-Shinohara world from a practical point of view to do adjustments when payments like these are made uh by way of interim property relief. But we're not going to be talking about Shinihara today, so we're not gonna dwell on that.
SPEAKER_00No, we're not going to be talking about Shinihara today. And the other part, important part of the case that I was referring to was in relation to how the interim orders were framed. They were put in the following terms. The respondent paid to the applicant via her solicitors within seven days the sum of $300,000, which sum shall be characterized by the trial judge. Why was the full court focused on that wording of the order?
SPEAKER_01The reason the full court was focused on it was that at the final trial there was great dispute as to what the character of that order was. The uh husband uh said that it was uh a partial property settlement order. Uh the wife said that it was an order for interim spousal maintenance. The trial judge uh uh mused that it might have just been a gift or alternatively a payment of the wife's legal costs. So there was great murkiness at the trial as to what the nature of what this order actually was.
SPEAKER_00So wasn't there full court authority to allow the trial judge to categorize the nature of the interim payment orders?
SPEAKER_01Yes, yes, there was. Uh and the full court acknowledged that. Um going way back to 19 uh ninety-five in Jockey, um and subsequently, you know, for another full court decision in 2012 of Merchant, both of those full court decisions said it was perfectly proper at an interim level for a trial judge to leave it up, uh an interim, a judge making the interim order to leave it up to the trial judge to categorize what the nature of the payment would be. Um this full court, uh relying on high the high court authority of NUYN, 1990 authority, which says uh a full court can say previous full courts were wrong, in fact said that those decisions were wrong and that um the this practice should cease and orders should be made that specify at the time the order is being made what power is being relied upon to make it.
SPEAKER_00So what options did the judge who had made the interim order have if the judge had categorized that the payment was ordered?
SPEAKER_01Well, clearly um it wasn't a gift. So the judge's musing that it might have been a gift was not available. The four heads of power that the full court identified and have historically been identified are the property power, the spousal maintenance power, the power to order costs, and the power to make mandatory injunctions. So they're the four possible heads of power under which a uh order for an interim payment of money from one spouse to another can be made.
SPEAKER_00So the usual options are for different heads of power?
SPEAKER_01Well, all of those heads of power are available. The most usual one that's used is the the property power. Um so uh the cases of Strawn and Harris lay out the basis upon which an order can be made for an interim property uh order. Um and those cases haven't changed as a result of this case. The uh principles remain the same, particularly the principles that you need to make an order that can be reversed if necessary at the final hearing and that maintains the integrity of the overall applications that are being made in that case. Uh but otherwise, most lump sum payments that are made are made under the uh property power.
SPEAKER_00I'm interested to know, and can you tell us what is the most common head of power that is relied on?
SPEAKER_01That's it. Section 79 or section 90 SM in de facto matters.
SPEAKER_00And would it be a good idea for practitioners when seeking an interim order for payment to specify that it is being made under a particular head of power?
SPEAKER_01Well, after this case, obviously, yes. Uh it would be really um uh useful to start your application by the by words like pursuant to section 79 or pursuant to section 74 or pursuant to section 114 UB or pursuant to section 114, depending on whether or not you're relying on the property power, the spouse maintenance power, the cost power, or the mandatory injunction power.
SPEAKER_00I think that's really important for solicitors to know to refer to those heads of power. Thank you, Gary. Finally, we're going to look at the case of Rob and Rob and whether that has survived the 2025 amendments. Gary, for those viewers who aren't familiar with the case of Rob and Rob, can you give them a little bit more detail?
SPEAKER_01Uh sure. Uh Rob and Rob uh was decided back in 1994 and so it's been good uh law since then. Uh it deals with the question of how do you take into account uh contributions that have been made uh towards uh the welfare of a stepchild uh during a marriage or a relationship, particularly ones that have been uh of some length. Uh and what the full court said in Rob and Rob was, well uh it's simple for um children who are children of the parties um because that's covered clearly by section seventy nine four subsection C um welfare of the family including role of homemaker and parent. Um but children who are uh only children of one of the parties um aren't covered by section 794C because that section talks about children under the role of the marriage or the children of the relationship under section ninety uh SM. So what the full court said in Robin Rob was that uh you can take contributions made in respect of stepchildren into account uh under section 7520 or uh for de facto it's uh I think Nighty uh SF3R.
SPEAKER_00So have the 2025 property amendments changed this at all?
SPEAKER_01Well, we didn't think so because uh the new uh section 795 Little V was in exactly the same words as section 752 little o. But um uh it looks like it has changed.
SPEAKER_00Why is that?
SPEAKER_01Well, uh Justice Christie decided a case of uh uh uh Cherokee and Cherokee, and in that uh she found that um 75 the old 7520, which has now been mirrored in the new 795V, the new seventy-five uh new seventy-nine five V doesn't cover all of the rob situation.
SPEAKER_00And can you tell us a bit about what happened in the case of Cherokee?
SPEAKER_01Well in Cherokee, uh Justice uh Christie was sitting as a single judge of appeal uh from a decision by a trial judge which had found that the husband's um DFRDB entitlement was uh not property but a financial resource, and Her Honor correctly held that that was wrong and upheld the appeal. Um Her Honour then had to re-exercise discretion or had decided to. And in the exercise of uh that um discretion, she uh looked at um the role that the uh husband had played in uh making substantial contributions uh in relation to the the wife's child of another relationship uh in terms of uh rent, um education expenses, um, and the like, uh including uh a bond that he'd paid for her.
SPEAKER_00So could those contributions be taken into account under the new catch all section 795 fee?
SPEAKER_01Well, it turns out yes, because um Her Honour ultimately found that they affected um the husband's present and future circumstances, those payments. Um but the more problematic comments flowed from Her Honor's reasons that uh related not only to financial contributions but to non-financial contributions.
SPEAKER_00And what were Justice Christie's reasons in respect to past contributions for stepchildren?
SPEAKER_01Uh well first I I make the trite observation that um section 795V, which is the the new 7520, um, is part of subsection 795. Um Her Honor was attracted by the heading of Section 795, um, which uh reads considerations relating to current and future circumstances. Um Her Honor was then further attracted by the wordings of by the wording of the new section 793, um, which is the section that's given us all the trouble in Shinihara. Uh that section reads uh in considering what order, if any, should be made under this section in property settlement proceedings, the court is to take into account, and then this step one, step two, and step three is the considerations set out in subsection five bracket, considerations relating to current and future circumstances.
SPEAKER_00What did her honour take from that?
SPEAKER_01Her honour opined that a plain reading of that subsection confined considerations which may be taken into account under 79.5 to only matters relating to current and future financial circumstances, and that would appear to preclude consideration of past rob and rob contributions under the catch all. And in Her Honor's words, it wasn't immediately apparent that such contributions may be considered under any sub-paragraph.
SPEAKER_00And what about material wastage? It is referred to in section 795D, and it's something that's happened in the past.
SPEAKER_01Yes. That caused a problem for Her Honor, and uh she resolved that by saying, Well, um I can take that into account because if the waste hadn't happened, um the party would have or the parties would have been in a better financial position in the present and in the future. Uh that was the logic by which she resolved that argument.
SPEAKER_00Um Was there anything in the explanatory memorandum of the 2025 property amendments that would indicate that it was um intended to abolish what was effectively good law for the last 30 years?
SPEAKER_01No, there wasn't. And Her Honor acknowledged that. Her honor actually said that um the way Section 79.3, B Little Roman II had been written was an unintentional uh or had an unintentional consequence uh of the nature that she was uh analyzing.
SPEAKER_00You earlier said that Her Honor was able to take into account the significant contributions to rent, bond, and educational expenses that the husband had made for the stepchild. How is that?
SPEAKER_01For the same reason that we've discussed about waste, Her Honor rationalize that those types of payments being in financial in nature and having been paid have had then a current and future impact on the financial circumstances of the husband in this case. So she was able to rationalise it in that way.
SPEAKER_00But doesn't the majority of cases where Robin Rob has been relevant involve the non-financial contribution of looking after a stepchild in the role of homemaker and stepparent over the period of the relationship?
SPEAKER_01That's correct. And um, in her honour's words, um, that i i it's it wasn't immediately uh apparent to her that such non-financial contributions may be considered under any sub-paragraph.
SPEAKER_00Aaron Ross Powell Gary, this is a very poor outcome for someone in the relationship, particularly a woman who has perhaps entered into a new marriage with a widower, with a young baby, and looked after that child through a marriage. How is there any way around that?
SPEAKER_01Well, I think the only way around it is to point to section 79.2, which hasn't changed. Uh the fact is that when making an order to alter property, you have to make an order that um is just and equitable. And if standing back, having done the first three stages, you end up with an outcome that uh doesn't recognize massive contributions made in the role of homemaker and parent to a stepchild by usually, as you say, a woman, that is not a just and equitable outcome. Uh and uh there I think is probably wriggle room under 79 to what used to be traditionally the fourth stage of making some type of further adjustment to take that into account.
SPEAKER_00Thank you, Gary, so much for joining us for another bonus episode. I know I know our viewers would have found this very useful to hear from you um about those topics and those cases.
SPEAKER_01It's always a pleasure talking to you about those things, Jenna. Thanks.
SPEAKER_00We've loved being in your ears this week. Don't forget to like, subscribe, and share this episode. We look forward to you joining us for the next episode.