When Trust Breaks Down in a 48-Year Marriage: How Does Australian Family Law Address Financial Misconduct and Family Violence in Property Settlements?

Based on the authentic Australian judicial case Aikema & Aikema [2025] FedCFamC1F 550, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information:

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 1)
• Presiding Judge: Carter J
• Cause of Action: Application for Property Settlement
• Judgment Date: 15 August 2025

Core Keywords:

• Keyword 1: Authentic Judgment Case
• Keyword 2: Family Law Property Settlement
• Keyword 3: Add-backs and Notional Property
• Keyword 4: Family Violence (Kennon Claim)
• Keyword 5: Assessment of Contributions
• Keyword 6: Witness Credibility

Background:

This case involves the dissolution of a 48-year marriage between a husband and wife, both originally from Country G, who built a life and raised three children in Australia. Having started with negligible assets, the parties accumulated a modest property pool, primarily through the husband’s employment and the wife’s contributions as a homemaker and parent. The matter came before the Court after the parties were unable to agree on a just and equitable division of their assets, with the wife alleging a history of significant family violence and the husband engaging in financial conduct that she argued had depleted the asset pool for his sole benefit. The proceedings were further complicated by procedural challenges, including a last-minute recusal application against the presiding judge.

Core Disputes and Claims:

The central issue for the Court was to determine what orders for the alteration of property interests would be just and equitable. This required resolving several key disputes:
1. The Wife’s Claims: The wife sought a significant adjustment in her favour, arguing that the husband had unilaterally withdrawn and spent approximately $173,000 for his own purposes, which should be added back to the asset pool. Furthermore, she contended that her contributions throughout the marriage were made significantly more arduous due to a sustained course of family violence perpetrated by the husband, warranting a further adjustment in her favour.
2. The Husband’s Claims: The husband denied all allegations of violence, claiming they were a fabrication orchestrated by the wife and their adult children to remove him from the family home. He disputed the wife’s financial claims, arguing that any monies spent were for legitimate family or business purposes. He sought a more even division of the property pool, asserting that his financial contributions as the primary income earner were superior.

Chapter 2: Origin of the Case

The parties married in Country G in 1977 and migrated to Australia that same year, embarking on a new life together. Over the next four decades, they raised three sons who are now independent adults. The husband was the primary breadwinner, engaged in employment and later a construction business, while the wife assumed the traditional role of homemaker and primary caregiver to their children.

The financial landscape of the marriage included two significant inheritances. In 2007, the wife received approximately $92,000 from her father’s estate, which she used to purchase furniture, fund a trip, and place the remainder in a term deposit, using the interest for her personal needs. In 2021, late in the relationship, the husband received an inheritance of approximately $169,000 from his mother’s estate.

Cracks in the marital foundation became increasingly pronounced in the years leading up to separation. The wife’s evidence, supported by her children, painted a picture of a household marred by the husband’s unpredictable anger, excessive alcohol consumption, and controlling behaviour. She reported feeling increasingly isolated and fearful, to the point where she spent most of her time confined to her bedroom to avoid him.

The breaking point came in late 2022. Believing the husband to be away from the home for a few days, the wife arranged for her son, Mr K, and his wife, Ms L, to help her move out. However, after the wife sent a text message about an open garage door, the husband returned unexpectedly. An altercation ensued, which resulted in the police being called, a Family Violence Safety Notice being issued against the husband, and his removal from the home. This event marked the final separation and triggered the commencement of legal proceedings to divide the assets accumulated over nearly half a century.

Chapter 3: Key Evidence and Core Disputes

Applicant’s (Wife’s) Main Evidence and Arguments:

• Affidavit Evidence: The wife’s detailed affidavits, corroborated by affidavits from her three adult sons (Mr K and Mr M) and her daughter-in-law (Ms L). This body of evidence described a consistent pattern of verbal, emotional, and physical abuse by the husband over many decades.
• Expert Evidence: An affidavit and report from Ms N, the wife’s treating clinical psychologist since 2011, which documented the wife’s long-standing symptoms of anxiety, depression, and low self-worth, linking them to her experiences within the marriage.
• Financial Documents: Bank statements from three separate accounts showing a series of cash withdrawals by the husband between 2021 and 2022, totalling approximately $173,000.
• Contemporaneous Records: Medical referrals dating back to 2005, where the wife reported her husband’s abusive behaviour and its impact on her mental health to her general practitioner.

Respondent’s (Husband’s) Main Evidence and Arguments:

• Affidavit Evidence: The husband’s affidavit, which offered a blanket denial of family violence. He claimed the allegations were a “ruse” and a conspiracy by his family to gain a financial advantage.
• Financial Explanations: He argued the cash withdrawals were used for legitimate business expenses, renovations, or were gifts to their son, Mr M, from his mother’s estate.
• Discredited Evidence: The husband included a photograph in his affidavit purporting to show a shirt ripped during an alleged assault by his son, Mr K. Under cross-examination, he admitted the photograph was not of him.
• Valuation Disputes: He relied on unsworn online appraisals to contest the sale price of vehicles and other items, and asserted certain items he retained had minimal value.

Core Dispute Points:

1. Credibility of Family Violence Allegations: The central factual dispute was whether the Court should accept the wife’s and her family’s evidence of long-term abuse, or the husband’s claim of a fabricated conspiracy.
2. The $173,000 in Cash Withdrawals: The Court had to determine if these funds were dissipated by the husband for his sole benefit and, if so, whether they should be notionally added back to the asset pool.
3. Valuation of Retained and Sold Assets: The Court was required to resolve disputes over the value of several assets, including vehicles, tools, and a shipping container, particularly where the husband had failed to comply with orders for their sale or provide proper valuations.
4. Existence of Liabilities: The Court had to decide whether to include alleged debts for storage fees in the liability pool, which were asserted by the husband but lacked documentary proof or a history of demand for payment.

Chapter 4: Statements in Affidavits

The affidavits filed in this case presented two starkly contrasting realities.

The wife’s narrative, woven through her own affidavit and those of her sons and daughter-in-law, was one of consistency and corroboration. It detailed a long history of fear, intimidation, and control, beginning early in the marriage and escalating over time. Her children provided firsthand accounts of witnessing their father’s rage, his denigration of their mother, and the destructive impact it had on the family environment. This evidence was further bolstered by the affidavit of her psychologist, Ms N, whose clinical observations provided a professional lens on the long-term psychological impact of the alleged abuse.

In direct opposition, the husband’s affidavit constructed a narrative of victimhood. He portrayed the marriage as “mostly civil and respectful” until its final stages, where he claimed his wife and children conspired to “ambush” and “set him up” to have him removed from the home. He offered broad, sweeping denials of the specific incidents of violence and financial misconduct raised by the wife. However, his credibility was severely undermined by his own evidence, most notably the admission that a photograph tendered to support an assault claim was not actually of him. His explanations for large cash withdrawals lacked detail and were often contradicted by the timeline of events, such as claiming funds were for business expenses for a company that had ceased trading years earlier.

Chapter 5: Court Orders

Prior to the final hearing, the Court made several crucial procedural orders aimed at clarifying the asset pool. On 20 December 2023, orders were made for the sale by auction of a significant number of items, including tools, machinery, and several motor vehicles. These items were located at both the former matrimonial home (under the wife’s control) and with the husband.

This order became a point of contention. While the wife complied by arranging for the sale of the items in her possession, the husband failed to do so for the items he held, including a machine, two trailers, and compressors. This non-compliance became a relevant factor for the Court in determining the final property division, as it demonstrated the husband’s unwillingness to cooperate with the legal process and frustrated the timely realisation of marital assets.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The trial began not with evidence, but with a series of procedural challenges initiated by the husband’s counsel. An application to adjourn the hearing due to the husband’s health was dismissed, as the medical certificate provided was generic and did not state he was unfit to participate. This was followed by a heated exchange regarding interpreter arrangements, culminating in the Judge’s pointed remark about counsel putting up “roadblocks.” This comment, along with the dismissal of the adjournment application and a refusal to allow the cross-examination of an interpreter, formed the basis of an oral recusal application, which the Judge also dismissed, finding no logical basis for an apprehension of bias.

When the hearing proceeded, the cross-examination process laid bare the weaknesses in the husband’s case. His credibility crumbled under questioning. He was unable to provide a plausible explanation for the series of large cash withdrawals, alternating between claiming he “could not recall” and that he “never looked at paperwork.” His attempt to prove an assault by his son with a fabricated photograph was exposed, dealing a fatal blow to his reliability as a witness.

In stark contrast, the wife and her witnesses remained consistent and credible throughout their testimony. The wife became visibly distressed when recounting incidents of abuse, and her emotional state was congruent with her evidence. Her sons and daughter-in-law provided clear, independent recollections of the husband’s behaviour that corroborated the wife’s account.

The Court placed significant weight on the credibility of the witnesses. In assessing the competing narratives, the Judge made a clear finding, stating:

I have significant reservations as to the husband’s credibility. I am concerned that the values which he has attributed to the items are not accurate.

Conversely, the Judge accepted the evidence of the wife and her witnesses without reservation. This fundamental assessment of who was telling the truth became the bedrock upon which the final judgment was built. The husband’s failure to substantiate his claims with evidence, combined with his evasiveness and the demonstrated untruthfulness of parts of his affidavit, meant his entire case lacked a foundation of credibility.

Chapter 7: Final Judgment of the Court

Having assessed the evidence and applied the relevant legal principles, the Court made the following orders:

1. The former matrimonial home is to be sold, with the net proceeds to be divided 57 per cent to the wife and 43 per cent to the husband.
2. From the husband’s share of the proceeds of sale of the home, the sum of AUD $30,398 is to be paid to the wife to effect the overall percentage division, accounting for the assets already held by each party.
3. The net proceeds from the auction of items already sold, held by the auctioneer, are to be divided 57 per cent to the wife and 43 per cent to the husband.
4. Each party is to retain all other property in their possession, and each will be solely responsible for any liabilities in their own name.
5. The Court noted that these orders were intended to finalise the financial relationship between the parties.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis:

The jurisprudential value of this judgment lies in its practical application of the Kennon principle in the context of a long marriage, where contributions might otherwise be assessed as equal. It demonstrates that a consistent, corroborated history of family violence can lead to a tangible uplift in a party’s contribution-based entitlements. Furthermore, the Court’s decision to address the husband’s pre-separation cash withdrawals under Section 75(2)(o) rather than as a strict “add-back” showcases a flexible and equitable approach to financial misconduct, focusing on the overall justice of the outcome rather than a rigid accounting exercise.

Judgment Points:

A noteworthy aspect of this case was the Judge’s firm management of the proceedings. The dismissal of the husband’s multiple preliminary applications (for adjournment and recusal) underscores the Court’s reluctance to entertain tactical manoeuvres that delay justice, particularly when they lack a solid evidentiary basis. The judgment serves as a reminder that a party’s conduct during the litigation process, including non-compliance with orders, can influence the final outcome and the Court’s overall assessment of their credibility.

Legal Basis:

The Court’s decision was anchored in several key provisions of the Family Law Act 1975 (Cth):
* Section 79: This section grants the Court the power to make orders altering the property interests of the parties.
* Section 79(4): This subsection requires the Court to assess the financial and non-financial contributions of the parties, as well as their contributions as homemaker or parent.
* Section 75(2): This subsection lists the “future needs” factors the Court must consider, including age, health, and income-earning capacity. Crucially, the Court used Section 75(2)(o)—the “any other fact or circumstance” clause—as the mechanism to account for the husband’s financial conduct, including his cash withdrawals and retention of assets.
* Section 4AB: This section provides the broad definition of “family violence,” which includes threatening or coercive behaviour that causes a family member to be fearful.

Evidence Chain:

The wife’s victory was built upon a powerful and cohesive chain of evidence. Her personal testimony did not stand alone; it was supported by the consistent and credible evidence of three family members who had witnessed the husband’s behaviour firsthand. This lay evidence was then professionally corroborated by the expert evidence of her treating psychologist and further supported by contemporaneous medical records from as early as 2001, which documented her reports of abuse and distress long before the litigation commenced. This multi-layered evidence created an overwhelming picture that the husband could not dismantle with mere denials.

Judicial Original Quotation:

In making a definitive finding on the issue of family violence, Carter J provided a clear and powerful summary of the Court’s conclusion, which became the cornerstone of the contribution-based adjustment:

I am satisfied to the requisite standard that the husband engaged in a pattern of acts including multiple incidents of property damage, assaults, threats, humiliation and verbal abuse, and intimidation and coercive behaviour which frightened and controlled the wife. I am satisfied that the violence perpetrated by the husband on the wife was enduring, significant and frequent.

This finding was critical. It directly validated the wife’s entire narrative and provided the legal justification for assessing her contributions as having been made “more arduous,” thus warranting a greater share of the asset pool.

Analysis of the Losing Party’s Failure:

The husband’s case failed spectacularly due to a complete collapse of his credibility. His strategy of broad denial without specific rebuttal, combined with attempts to mislead the court (the ripped shirt photo), proved disastrous. He failed to provide any credible evidence to support his financial claims or to contradict the overwhelming evidence against him regarding family violence. His non-compliance with court orders and the unmeritorious preliminary applications likely further eroded his standing before the Court. Ultimately, he presented a case built on implausible assertions and unsubstantiated allegations of conspiracy, which could not withstand the scrutiny of cross-examination or be reconciled with the consistent, corroborated evidence presented by the wife and her witnesses.

Reference to Comparable Authorities:

• Aleksovski v Aleksovski (1996) 135 FLR 131: The Court must assess contributions of all kinds and from all sources and translate that into a percentage of the overall property.
• Dickons v Dickons (2012) 50 Fam LR 244: The assessment of contributions involves a wide discretion and is not a mathematical or accounting exercise.
• Martell & Martell [2023] FedCFamC1A 71: This recent authority clarifies that the threshold for a Kennon claim is not that the violence be “exceptional,” but that it has a “significant adverse impact” on a party’s contributions, making them more arduous.
• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337: This High Court authority sets out the test for apprehended bias in a recusal application: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question.

Implications

1. Credibility is Everything: This case is a powerful illustration that in “he said, she said” disputes, credibility is paramount. A party who is found to be untruthful on one key issue risks having their entire evidence rejected by the Court.
2. The Long Shadow of Family Violence: The Court will look beyond financial contributions. A long-term pattern of violence and controlling behaviour can be recognised with a tangible adjustment to the property pool, acknowledging that it makes the victim’s contributions as a parent and homemaker significantly more difficult.
3. Evidence Speaks Louder Than Assertions: The husband made numerous claims about finances and the value of assets but failed to provide any credible evidence. The wife, in contrast, built her case with documents, witness testimony, and professional reports. In court, unsupported allegations are worthless.
4. “Add-backs” Are Not Automatic: Wasting or unilaterally disposing of assets does not automatically mean those funds will be notionally “added back” to the pool. Courts may instead deal with such conduct by making an adjustment under other provisions, such as the “catch-all” factor in Section 75(2)(o), demonstrating a more flexible approach to achieving justice.
5. Your Conduct in Court Matters: The husband’s approach to the litigation, including non-compliance with orders and making unmeritorious applications, likely damaged his credibility further. How you conduct yourself during the legal process can and does influence the Court’s perception of you.

Q&A Session

1. Why didn’t the court “add back” the $173,000 the husband was found to have withdrawn?
   The Court has a discretion in how it deals with the dissipation of assets. While it could have notionally added the funds back to the pool, it chose instead to treat the husband’s conduct as a relevant factor under Section 75(2)(o) of the Act. This means that instead of inflating the asset pool on paper, the Court considered the husband’s financial conduct when deciding the final percentage split. This is often seen as a more practical approach, especially when the funds are long gone and adding them back is a purely theoretical exercise.

2. How did the court decide the wife’s contributions were “more arduous”?
   The Court applied the legal principle from the case of Kennon & Kennon. It accepted the consistent evidence from the wife, her adult children, and her psychologist that she was subjected to a long-term pattern of physical, verbal, and psychological abuse. The Judge found that this conduct made her contributions as a homemaker and parent significantly more difficult to perform. The fear, distress, and isolation she experienced meant that carrying out her roles required a greater effort than would otherwise have been the case, and the Court recognised this by adjusting the contribution assessment in her favour.

3. What is a recusal application and why did it fail?
   A recusal application is a request for a judge to step down from hearing a case on the grounds of apprehended bias—that is, that a fair-minded observer might think the judge cannot be impartial. The husband’s counsel made this application based on the Judge’s refusal to grant an adjournment, comments made during a procedural argument (“roadblocks”), and rulings about interpreters. The application failed because the Judge found there was no logical connection between these procedural rulings and any potential inability to decide the case impartially. A judge’s case management decisions, even if firm, do not automatically demonstrate bias.

---

[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

• Case Subtype: Family Law – Final Property Settlement in a Long Marriage
• Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

This case is a matrimonial property dispute. The core legal framework applied by the court is the Four-Step Process for property settlement under the Family Law Act 1975.

• Property Settlement – The Four-Step Process:
  1. Identification and Valuation: The first step is to identify and value all assets, liabilities, and superannuation of the parties to determine the net asset pool. In this case, the Court had to resolve disputes over the value of several items, such as the husband’s car and tools, and determine whether to include alleged liabilities for storage fees. The Judge ultimately relied on the most credible evidence available, such as actual sale prices and values sworn to in financial statements, rather than unproven assertions.
  2. Assessment of Contributions: The Court then assesses the contributions made by each party throughout the relationship. This is a holistic assessment and includes:
     • Financial contributions: The husband was the primary income earner for most of the marriage. Both parties received inheritances, though at different stages of the relationship.
     • Non-financial contributions: The wife undertook renovations and assisted with the administration of the family business.
     • Contributions to the welfare of the family: The wife was the primary homemaker and parent to the three children. A crucial element here was the Court’s finding that the husband’s family violence made the wife’s contributions in this category significantly more arduous, warranting them to be given greater weight (the Kennon principle).
  3. Adjustment for Future Needs (s 75(2) Factors): The Court considers a range of factors relating to the parties’ future needs. This includes age, health, income-earning capacity, and care of children. In this case, both parties were of retirement age with limited income capacity. The Court used Section 75(2)(o)—”any other fact or circumstance which the justice of the case requires to be taken into account”—as the vehicle to address the husband’s financial misconduct (the cash withdrawals and disposal of assets). Instead of a strict “add-back,” this conduct was factored in as part of the overall assessment of what was just and equitable.
  4. Just and Equitable: The final step is for the Court to stand back and assess whether the proposed division is, in all the circumstances, fair and equitable to both parties. Based on the findings on contributions and future needs factors, the Court determined that a 57/43 split in the wife’s favour was the just and equitable outcome.

3. Equitable Remedies and Alternative Claims

While this case was determined under the Family Law Act, the principles of Equity often provide alternative pathways in financial disputes between couples, particularly where a formal marriage or de facto relationship cannot be established.

• Unjust Enrichment / Constructive Trust:
  • Principle: This doctrine applies where one party has been enriched at the other’s expense in circumstances that are unjust. For example, if one partner contributes significant funds or unpaid labour to renovating a property legally owned by the other, it may be unconscionable for the legal owner to retain the full benefit of that increased value upon separation.
  • Result Reference: The Court can impose a constructive trust, declaring that the non-owner partner holds a beneficial (equitable) interest in the property proportionate to their contribution. This prevents the legal owner from being “unjustly enriched.” In a family law context, these contributions are already recognised under the Act, but this doctrine is crucial for relationships that fall outside the Act’s jurisdiction.

4. Access Thresholds and Exceptional Circumstances

While not directly at issue in this case (which involved a long marriage), it is critical for parties to be aware of the time limits and thresholds in family law.

• Regular Thresholds:
  • De Facto Relationships: To apply for a property settlement, parties in a de facto relationship must generally show they were in the relationship for a total period of at least 2 years, unless an exception applies.
  • Time Limits for Filing: Applications for property settlement must be filed within 12 months of a divorce order taking effect for married couples, or within 2 years of the date of separation for de facto couples.
• Exceptional Channels (Crucial):
  • Family Law (De Facto < 2 years): An application can still be made if:
    • There is a child of the de facto relationship.
    • The applicant made substantial contributions and a failure to make an order would result in serious injustice.
  • Family Law (Time Limit Expired): The Court may grant leave to file an application out of time if it is satisfied that hardship would be caused to a party or a child if leave were not granted.
• Suggestion: Do not assume your claim is barred simply because you do not meet a standard time limit. The law contains important exceptions for situations involving children, substantial contributions, and potential hardship. It is vital to seek legal advice to see if these exceptions apply to your circumstances.

5. Guidelines for Judicial and Legal Citation

• Citation Angle:
  This judgment is a valuable authority in property settlement cases involving long marriages where there are allegations of family violence and financial misconduct. It is particularly useful for submissions concerning:

  1. The application of the Kennon principle to assess how family violence makes contributions more arduous.
  2. The Court’s discretionary use of Section 75(2)(o) as an alternative to a formal “add-back” for pre-separation dissipation of assets.
  3. The critical importance of witness credibility and the consequences of providing evasive or demonstrably false evidence.
• Citation Method:
  • As Positive Support: When your matter involves a long-term pattern of controlling behaviour or financial misconduct that is difficult to quantify, this case supports a holistic adjustment under Section 75(2)(o) rather than getting bogged down in a strict “add-back” debate. It also strongly supports the principle that a consistent pattern of abuse, corroborated by family members and professional reports, can lead to a significant contribution-based uplift.
  • As a Distinguishing Reference: If an opposing party attempts to downplay the impact of non-physical abuse, this authority can be used to show that “violent, threatening or other behaviour that coerces or controls” is sufficient to enliven the Kennon principles, even without allegations of being “hit.”
• Anonymisation Rule: When citing this authority in submissions or academic articles, the parties should be referred to by their procedural titles (the Applicant/Wife and the Respondent/Husband) and the case name (Aikema & Aikema).

Conclusion

The judgment in Aikema & Aikema serves as a powerful reminder that family law is not a mere accounting exercise. The Court’s role is to achieve justice by looking at the entire context of the marital relationship. This case demonstrates that while financial contributions are important, the Court will give significant weight to the arduous nature of contributions made in the face of enduring family violence. It also shows that attempts to mislead the court or deplete assets are unlikely to succeed and will be factored into the final division.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Aikema & Aikema), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.