Family Law Property Dispute: When an Informal Separation Agreement Leaves Superannuation Undivided, Is It Just and Equitable for the Court to Intervene Years Later?
Introduction
Based on the authentic Australian judicial case Janner & Janner [2025] FedCFamC2F 297, 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
Presiding Judge: Judge O’Shannessy
Cause of Action: Application for property settlement orders under the Family Law Act 1975 (Cth).
Judgment Date: 20 February 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Family Law Property Settlement
Keyword 3: Self-Managed Superannuation Fund (SMSF)
Keyword 4: Informal Property Agreement
Keyword 5: Just and Equitable
Keyword 6: Superannuation Splitting Orders
Background:
This case involved a dispute over property orders between Ms Janner (the Applicant Wife) and Mr Janner (the Respondent Husband), who were married in 1986 and had three adult children. The parties physically separated in July 2017, following an earlier period of sleeping in separate bedrooms from 2015. Their divorce was finalised in mid-2023. The Wife initiated property proceedings in April 2024. A central issue in the proceedings was the status of their jointly held Self-Managed Superannuation Fund (the Fund), which owned a warehouse property. Non-superannuation assets had been largely divided around the time of separation, with the Wife receiving substantially more cash to purchase a new home. The Court was tasked with determining whether it was just and equitable to make property orders, particularly concerning the Fund, given the passage of time and the parties’ differing recollections of an informal property settlement.
Core Disputes and Claims:
The primary dispute was whether an informal property settlement agreement, alleged by the Husband to have occurred in 2017, was intended to be a final division of all matrimonial assets, including the Fund.
* The Wife’s Claim: Asserted that she always understood she retained an interest in the Fund, regardless of the earlier division of non-superannuation assets. She sought a division of entitlements in the Fund by way of superannuation splitting orders to effect an equal division of all superannuation.
* The Husband’s Claim: Contended that the 2017 agreement was a comprehensive and final settlement of all financial relations, with each party retaining their respective interests in the Fund as they stood (approximately 5.5% to the Wife and 94.5% to the Husband). He sought orders reflecting this existing division, with a minor adjustment for the Wife to cease her trusteeship of the Fund.
Chapter 2: Origin of the Case
The marriage between Ms Janner and Mr Janner spanned over three decades, during which they raised three children who are now financially independent. The initial cracks in their relationship appeared in 2015 when they began sleeping in separate bedrooms, culminating in Mr Janner’s departure from the former matrimonial home in July 2017. This physical separation was followed by the sale of their former matrimonial home. The proceeds from this sale were distributed, with Ms Janner receiving approximately $700,000 to purchase an unencumbered property for herself, and Mr Janner receiving approximately $409,064.40. This early division addressed their immediate housing needs but left the status of their jointly managed self-managed superannuation fund (SMSF), which owned a commercial warehouse property, ambiguous in the Wife’s mind.
A critical point of ongoing financial entanglement was the mortgage over the warehouse property held within the Fund. Both parties remained joint trustees of the Fund and continued to be co-borrowers, jointly and severally liable for the mortgage debt secured over this asset. This arrangement, years after their physical separation and even after their divorce was finalised in mid-2023, indicated a lack of complete financial severance. The Wife continued to believe she held an interest in the Fund, while the Husband asserted that the distribution of non-superannuation assets in 2017 was part of a final, informal agreement that included each party retaining their existing (and disparate) interests in the Fund. The Wife’s health issues, including anxiety and depression, further complicated her engagement with financial matters. These unresolved issues, particularly the significant asset held within the Fund, ultimately led to the Wife initiating legal proceedings in April 2024 to formalise a property settlement.
Chapter 3: Key Evidence and Core Disputes
Applicant’s Main Evidence and Arguments:
* Affidavit Evidence: Ms Janner stated she was emotionally vulnerable and unaware of the full financial breakdown during separation. She did not recall a specific budget for her new home but struggled to find one. She recalled her adult daughter, Ms G, acting as an intermediary, conveying that the Husband would provide enough funds for her to purchase a specific property (F Street). She did not regard the funds received from the sale of the former matrimonial home as a “complete financial payout” for their marriage.
* Belief of Retained Interest: She consistently believed that she and the Husband continued to hold the Suburb C property (the warehouse in the SMSF) together and that there had been no “complete severance of all of the assets.” She expected to receive her interest in the Fund upon its sale.
* Vulnerability and Financial Naivete: She relied on medical evidence from her GP, an affidavit filed on 11 October 2024, detailing her anxiety and depression, panic attacks, and alcohol dependency. She argued that her lack of financial sophistication meant she did not fully understand complex business or superannuation arrangements, leaving her reliant on the Husband’s assurances of fairness.
* Ongoing Trusteeship and Liabilities: Her continued status as a joint trustee of the Fund and a co-borrower for the mortgage debt secured over the warehouse property supported her belief in an ongoing interest.
Respondent’s Main Evidence and Arguments:
* Affidavit Evidence: Mr Janner deposed that in 2017, prior to the sale of the Town E property, he and the Applicant Wife “agreed on an informal property settlement that was approximately a 50/50% split.” He provided a detailed breakdown of assets allocated to each party, totalling approximately $745,212.44 (49.87%) for the Wife and $748,998.40 (50.13%) for him. This included specific cash amounts, superannuation entitlements in non-SMSF funds, the SMSF entitlement, and motor vehicles.
* Reliance on Agreement: He asserted that both parties were happy with this informal settlement and agreed not to seek legal advice to save costs. He claimed to have managed his financial affairs based on the understanding that this settlement was final.
* Wife’s Financial Fairness Acknowledgment: He noted that the Wife had acknowledged his financial fairness in text messages in 2019 and that he continued to complete her tax returns until 2022, reinforcing the amicable nature of the settlement.
* Child’s Role: He disputed that their daughter acted as an intermediary in settlement discussions.
Core Dispute Points:
1. Existence and Scope of Agreement: Was there an informal agreement in 2017 that constituted a final division of all matrimonial property, specifically including the SMSF? The Wife denied any agreement regarding the SMSF, while the Husband asserted it was part of a holistic settlement.
2. Parties’ Understanding and Intent: Did both parties fully understand and intend for the 2017 division of non-superannuation assets to be a final settlement of all financial relations, including their superannuation interests in the Fund?
3. Wife’s Capacity and Vulnerability: The extent to which the Wife’s emotional and mental health (anxiety, depression, alcohol dependency) and her lack of financial acumen affected her capacity to genuinely agree to a final and comprehensive property settlement, particularly concerning complex assets like the SMSF.
4. Ongoing Joint Liabilities: The significance of both parties remaining joint trustees of the Fund and co-borrowers for the mortgage over the warehouse property long after physical separation.
5. Earning Capacity and Future Needs: The comparative earning capacities and health of the parties, and the impact of these factors on their future needs under section 75(2) of the Family Law Act 1975 (Cth).
Chapter 4: Statements in Affidavits
In this case, the affidavits presented by both parties meticulously constructed their respective narratives, intertwining factual assertions with personal interpretations of events. Ms Janner’s affidavit portrayed a period of significant emotional vulnerability following the separation, marked by her alcohol dependency, anxiety, and depression. Her statements conveyed a sense of detachment from the financial intricacies of the separation, describing herself as simply being “delivered the news” about finding a new home and receiving a lump sum without deep inquiry into the overall asset position. She specifically asserted her belief that the SMSF property (the warehouse) remained a jointly held asset, signifying that their financial affairs were not entirely severed. This highlights a strategic intent to demonstrate a lack of informed consent or comprehensive understanding regarding the full scope of any alleged agreement.
Conversely, Mr Janner’s affidavit presented a narrative of amicable and mutual agreement, detailing what he considered to be a clear 50/50 informal property settlement in 2017. He itemised specific amounts and assets allocated to each party, including their respective non-SMSF superannuation and a fixed (though disproportionate) SMSF entitlement. His affidavit emphasised the parties’ shared decision not to seek legal advice, citing a mutual belief in their fairness and a desire to save money. His strategic intent was to establish a binding, if informal, agreement that should preclude further alterations by the Court.
A crucial point of comparison arose concerning the $1,740.79 discrepancy in the Wife’s received funds and a $20,000 transaction (initially described as a loan to a child by the Husband, later clarified as a return of funds to his personal account). These details, though minor, reveal the differing levels of financial engagement and recollection between the parties, with the Wife’s narrative tending towards a general, trusting understanding, and the Husband’s relying on more granular (though sometimes inconsistent) detail.
The Judge’s procedural directions regarding the affidavits aimed to distil the core factual disputes from the parties’ subjective understandings. By requiring detailed breakdowns and comparing seemingly contradictory accounts, the Court sought to identify verifiable facts that would either support or undermine the existence and scope of the alleged informal agreement. This meticulous process is essential to move beyond individual perceptions and establish an objective factual matrix for legal determination.
Chapter 5: Court Orders
Prior to the final hearing, the Court issued specific procedural arrangements and directions to facilitate a just and equitable resolution. These orders included:
1. Conferral on Superannuation Splitting Order: The parties, through their legal representatives, were directed to confer as to the form of the section 90XT(b) order or orders necessary to give effect to the Court’s ultimate property orders. This was to specifically include arrangements for the sale of the Suburb C property (the warehouse) and measures to minimise, but not avoid, legal taxation obligations associated with such a sale.
2. Expert Advice: The parties were instructed to obtain any necessary expert taxation or accounting advice to inform the necessary form of the superannuation splitting orders.
3. Joint Minute of Order: On or before 4:00 pm on 13 March 2025, the parties were to file and serve a joint minute of the order for a superannuation fund payment split and division of the benefit of the Fund between them, to occur on 30 June 2025. This minute was to be formulated based on a specific percentage split formula outlined in the judgment.
4. Dispute Resolution for Orders: In the event of a dispute regarding the form of the orders referred to in point 1, each party was to bring in their proposed form of the order, accompanied by short written submissions, by 4:00 pm on 13 March 2025.
Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic
The hearing unfolded as a precise examination of the parties’ assertions, particularly focusing on the existence and scope of the alleged informal property agreement from 2017. The cross-examination process meticulously probed the logical inconsistencies and gaps in testimony, especially concerning financial transactions.
A key point of confrontation revolved around the Husband’s accounting for the proceeds from the sale of the business (distinct from the warehouse). The Wife had contended that up to $70,000 of these proceeds remained unaccounted for by the Husband. Through careful cross-examination, it was revealed that approximately $47,464.82 from the sale of stock and the business had been deposited into a joint or business account. Further scrutiny exposed two specific transactions totalling $20,000 ($15,000 and $5,000) that the Husband initially described vaguely as a “loan to one of the children” in his affidavit but, under cross-examination with direct reference to Exhibit H1 (a bank statement showing a $20,000 credit to his personal account), admitted was the “return of the transaction described as gift plus another $5,000 transaction” and that it “had not been a gift at all but had been a loan.” This shift in testimony, though minor, impacted his overall credibility regarding the precision of past financial arrangements.
The most decisive evidence, however, was the objective fact that both parties remained joint trustees of the self-managed superannuation fund and, crucially, continued to be co-borrowers, jointly and severally liable for the substantial mortgage debt secured over the warehouse property held by the Fund. This objective chain of evidence directly contradicted the Husband’s assertion of a final and comprehensive agreement that effectively excluded the Wife from any further beneficial interest in the Fund.
The Court’s reasoning was driven by these facts, particularly the continued legal and financial entanglement:
“In the circumstances where the Wife remained a joint trustee of the Fund and remained a co-borrower and liable personally for the debt (in regard to the warehouse property), I am satisfied that the Wife’s belief was reasonable.” (Paragraph 18)
This statement was determinative because it established a principled reason for the Court to interfere with the existing interests, directly addressing the Stanford and Bevan principles. The Wife’s continued legal obligation and oversight as a trustee, even if passive, meant that a full and final settlement, as alleged by the Husband, was objectively implausible without specific, clear arrangements for her divestment.
“I do not accept the Husband’s conclusion from the events, as he recollects them, that there was either an express oral agreement, or one to be implied, that all of the assets, including the self-managed superannuation Fund, were divided between them.” (Paragraph 61)
This direct finding on the absence of a comprehensive agreement negated the Husband’s primary defence, shifting the focus to the Court’s discretion under section 79. The Court accepted the Wife’s narrative of passive acceptance rather than active agreement regarding the SMSF, finding her lack of financial sophistication to be a credible explanation for her limited engagement.
Chapter 7: Final Judgment of the Court
The Court ultimately found that it was just and equitable to make property orders, including a superannuation splitting order. The final orders were to the following effect:
1. Retention of Sole Assets and Liabilities: Each party was to retain all assets and liabilities currently in their sole names, with the exception of their interests in the Janner Superannuation Fund.
2. Superannuation Splitting Order: The parties were directed, by their lawyers, to take all necessary steps to formulate and agree upon a section 90XT(b) superannuation splitting order. This order was to ensure that a percentage superannuation payment split, or splits, would occur from the Husband’s interest in the Fund to the Wife. This split would lead to an overall asset and superannuation division (treated as a single pool) of 53.8% to the Wife and 46.2% to the Husband. The specific formula provided was:
X% = [(A + $1,383,661) × 53.8%] – $826,461 / A
Where:
* ‘A’ is the total value of the parties’ superannuation interests in the Fund (calculated at 30 June 2025 after sale expenses and taxation, and proceeds from the Suburb C property).
* $1,383,661 represents the total value of non-SMSF property and superannuation interests retained by both parties.
* $826,461 represents the value of non-SMSF property and superannuation retained by the Wife.
3. Future of the Fund: The remaining balance of the Fund, after the Wife’s superannuation payment split, was to be retained as the Husband’s entitlements. However, the Husband had the option to elect, in writing by a specified date (to be inserted), for the Fund to be wound up and his remaining entitlement rolled out to a complying fund. If he did not make this election, he would be deemed to have elected to retain his interest in the Fund to the exclusion of the Wife.
4. Costs of Winding Up: If the Fund was wound up, all associated accounting and other expenses, including taxation, were to be treated as an expense of the Fund as at 30 June 2025.
5. Dispute Resolution on Order Form: In the event of a dispute as to the form of the superannuation orders, the parties were to file and serve a joint minute of their proposed orders, accompanied by short written submissions, by 4:00 pm on 13 March 2025.
Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory
Special Analysis:
This case highlights a critical nuance in Australian family law property disputes: the Court’s inherent reluctance to be ousted from its jurisdiction by informal agreements. Even years after a de facto separation and the division of certain assets, the continued joint legal and financial entanglement of parties, particularly through a superannuation fund and its associated liabilities, provides a principled reason for intervention under section 79 of the Family Law Act 1975. The judgment reaffirms the principles from Stanford v Stanford and Bevan & Bevan, underscoring that while informal agreements can be relevant, they do not automatically dictate the outcome; the Court must still be satisfied that any order is “just and equitable” in all the circumstances at the time of the hearing. The use of a “rise and fall” formula for the superannuation split acknowledges the inherent uncertainties of asset realisation and taxation, providing a fair mechanism for division even when precise future values are unknown.
Judgment Points:
1. Credibility and Financial Sophistication: The Court accepted the Wife’s “frank and honest account” despite her “naivete about business arrangements,” contrasted with the Husband’s “genuine, open and frank” testimony, save for a minor inconsistency regarding a $20,000 transaction. This distinction was crucial, as the Wife’s lack of financial understanding explained her passive acceptance of earlier arrangements without necessarily agreeing to a final settlement of the SMSF.
2. Objectively Established Facts over Subjective Recollection: The continued joint trusteeship of the Fund and, more significantly, both parties remaining co-borrowers for the substantial mortgage over the warehouse property, were decisive objective facts. These facts outweighed the Husband’s subjective recollection of a comprehensive informal agreement.
3. Health as a Future Needs Factor: The Wife’s documented anxiety, depression, panic attacks, and past alcohol dependency, coupled with her precarious employment status, were significant section 75(2) factors justifying an adjustment in her favour.
4. Modest Post-Separation Contributions: The Court acknowledged the Husband’s greater post-separation contributions (managing the Fund, some renovations, $11,000 contributions) but found them to be modest in the context of the long relationship and overall asset pool.
5. Exclusion of Minor Post-Separation Debts: The Court deemed it inappropriate to include modest post-separation credit card or personal loan liabilities in the asset pool, reinforcing the principle that parties are generally responsible for their day-to-day debts after separation.
Legal Basis:
The Judge referred to sections 75, 79, and 90XT of the Family Law Act 1975 (Cth). The Court applied the four-step approach to property settlement derived from Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143, as approved by Keskin & Keskin and Anor (2019) FLC 93-932. This approach involves:
1. Identifying and valuing property, liabilities, and financial resources.
2. Assessing contributions (financial, non-financial, welfare of family) under section 79(4)(a), (b), (c).
3. Considering future needs factors under section 79(4)(d), (e), (f), (g) (including section 75(2) factors).
4. Determining what orders are “just and equitable” in all circumstances.
Evidence Chain:
The evidence chain was meticulously constructed through:
* Affidavits of both parties: Providing detailed (though sometimes contradictory) accounts of financial arrangements and understandings post-separation.
* Medical evidence: An affidavit from the Wife’s GP detailing her health conditions, corroborating her claims of emotional vulnerability.
* Financial records: Bank statements (e.g., Exhibit H1) and property transfer documents, which objectively demonstrated joint liabilities (mortgage) and the flow of funds.
* Continued joint legal structures: Proof that both parties remained joint trustees of the SMSF and co-borrowers of the mortgage.
Judicial Original Quotation:
“In the circumstances where the Wife remained a joint trustee of the Fund and remained a co-borrower and liable personally for the debt (in regard to the warehouse property), I am satisfied that the Wife’s belief was reasonable.” (Paragraph 18)
This statement was fundamental. It directly linked the objective, undisputed facts of continued joint legal and financial responsibility to the Wife’s subjective, but credible, belief that the Fund remained an un-divided asset. This provided the “principled reason” required by Stanford to intervene and make orders. The objective reality of the shared debt and trusteeship rendered the Husband’s claim of a final agreement without addressing the Fund untenable.“I do not accept the Husband’s conclusion from the events, as he recollects them, that there was either an express oral agreement, or one to be implied, that all of the assets, including the self-managed superannuation Fund, were divided between them. The effect of that would be that the superannuation fund, as it was, would have been roughly 5 – 6% to the Wife and the balance to the Husband.” (Paragraph 61)
This was the core finding on the central factual dispute. The Court explicitly rejected the Husband’s contention of a comprehensive agreement. This rejection was crucial because it meant the entire asset pool, including the significant SMSF, remained within the Court’s purview for a just and equitable division, rather than being circumscribed by a disputed informal settlement. The disproportionate split that would have resulted from the Husband’s interpretation further underscored the unlikelihood of such an agreement.“I am satisfied because of the uncertainty of the Wife’s employment, her significant health issues, and the Husband’s greater earning capacity, that there should be an adjustment in the order of 6.8% in the Wife’s favour.” (Paragraph 80)
This pronouncement detailed the specific adjustment made under section 75(2) (future needs factors). It directly applied the evidence of the Wife’s medical conditions and employment fragility, combined with the Husband’s professional capacity, to quantify a necessary equitable adjustment. This demonstrates the Court’s holistic consideration of the parties’ post-separation realities to ensure a fair outcome, moving beyond mere contributions.
Analysis of the Losing Party’s Failure:
The Husband’s primary failure lay in his inability to objectively substantiate a clear, express, or implied informal agreement that definitively included the final division of the Self-Managed Superannuation Fund. While he meticulously detailed the division of non-superannuation assets in 2017, he could not reconcile this with the undisputed fact that both parties remained joint trustees of the Fund and continued to be co-borrowers on its mortgage. This objective inconsistency fundamentally undermined his assertion that all financial ties related to the Fund were severed. The Court viewed the Wife’s continued legal obligations and the significant disparity in the SMSF entitlements under the Husband’s proposed “agreement” as strong indicators that no such comprehensive final settlement had occurred. His recollection, though detailed, could not overcome the material reality of ongoing joint financial responsibility and the Wife’s credible, albeit passive, understanding of a continued interest.
Implications
1. Formalise Everything: Always seek formal legal advice and formalise all property settlement agreements through consent orders or binding financial agreements. Informal arrangements, even if well-intentioned, are vulnerable to challenge and judicial intervention years later.
2. Clarity on Joint Assets: If you separate, ensure that all joint assets and liabilities, particularly complex structures like self-managed superannuation funds or investment properties, are explicitly addressed and formally divided. Leaving ongoing joint ownership or debt can lead to protracted and costly litigation.
3. Vulnerability Matters: If one party is emotionally or financially vulnerable during separation, it is crucial to seek independent legal and financial advice to ensure their interests are protected. The Court will scrutinise agreements where there is a significant power imbalance or lack of informed consent.
4. Health is Wealth (Legally): Documenting health issues and their impact on earning capacity can be a powerful factor in property settlement, influencing adjustments for future needs. Maintain accurate medical records and be prepared to present them as evidence.
5. Post-Separation Contributions: While not as heavily weighted as contributions during the relationship, significant post-separation efforts (e.g., managing complex assets, contributing to superannuation, caregiving) can still impact the final division. Keep records of such contributions.
Q&A Session
Q1: What exactly is a “self-managed superannuation fund” and why was it so contentious in this case?
A1: A self-managed superannuation fund (SMSF) is a type of superannuation fund in Australia where the members are also the trustees. This means they are responsible for its management and compliance. In this case, the SMSF held a valuable commercial property (a warehouse) and had a significant mortgage. It was contentious because, unlike other assets, its ownership structure (joint trustees) and associated liabilities (joint co-borrowers for the mortgage) continued long after the parties separated. The Husband believed it was part of an informal settlement where each kept their existing (unequal) entitlements, while the Wife believed it remained a shared asset to be divided. The Court found the ongoing joint legal responsibilities to be a key reason to intervene.
Q2: The parties had an “informal property settlement” in 2017. Why wasn’t this agreement binding on the Court?
A2: In Australian family law, informal agreements are generally not legally binding in the same way as consent orders or binding financial agreements approved by the Court. While the Court may consider them as an indication of what the parties thought was fair at the time, it retains its jurisdiction under section 79 of the Family Law Act 1975 (Cth) to make orders that are “just and equitable” in all the circumstances. In this case, the Court found that there was no clear agreement that encompassed the SMSF. The continued joint legal responsibilities (trusteeship and mortgage) meant that the informal agreement was incomplete and not fully relied upon as a final settlement concerning this major asset.
Q3: How did the Wife’s health issues influence the Court’s final decision?
A3: The Wife’s health issues, including anxiety, depression, and a history of alcohol dependency, were significant factors under section 75(2) of the Family Law Act 1975 (Cth), which deals with future needs. The Court found that her health affected her earning capacity and employment stability. This vulnerability, coupled with the Husband’s greater (albeit underutilised) earning capacity, led the Court to make an adjustment in the Wife’s favour. This adjustment (6.8%) increased her overall share of the asset pool, reflecting the Court’s consideration of her long-term financial security and ongoing challenges.
Disclaimer
This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Janner & Janner [2025] FedCFamC2F 297), 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.
Appendix: Reference for Comparable Case Judgments and Practical Guidelines
1. Practical Positioning of This Case
Case Subtype: Family Law – Matrimonial Property Division (Post-Separation, Undivided Superannuation, Informal Agreement)
Judgment Nature Definition: Final Judgment
2. Self-examination of Core Statutory Elements
① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)
Core Test (Existence of De Facto Relationship – Section 4AA):
* Duration of the relationship: (General rule: 2 years, unless exceptions apply). For married couples, this refers to the duration of the marriage.
* Nature and extent of common residence: (Did they live together? Was it continuous?). For married couples, this is typically established by the marriage itself.
* Whether a sexual relationship exists: (Or existed). Relevant for assessing the nature of the marital relationship.
* Degree of financial dependence or interdependence: (Any financial support arrangements?). Crucial for assessing contributions and future needs.
* Ownership, use and acquisition of property: (Joint names or separate?). Central to identifying the asset pool.
* Degree of mutual commitment to a shared life: (Was it casual or committed?). Important for understanding the context of contributions.
* The care and support of children. Relevant for assessing non-financial contributions.
* Reputation and public aspects of the relationship: (Did family/friends view them as a couple?). Provides external validation of the relationship.
Property Settlement – The Four-Step Process (Section 79 of the Family Law Act 1975 (Cth)):
1. Identification and Valuation: Determine the net asset pool of the parties at the date of the hearing (assets minus liabilities), including superannuation interests and any financial resources.
* Application to Case: The Court identified the SMSF, non-SMSF superannuation interests, cash/property from previous home sale, and motor vehicles. The agreed value of the warehouse (SMSF asset) was $975,000, with a mortgage and liabilities of approximately $46,970.35. Non-SMSF assets retained by the Wife totalled $826,461, and by the Husband, $557,200. The total approximate asset pool was around $2,307,661.
2. Assessment of Contributions: Identify and assess the financial and non-financial contributions made directly or indirectly by or on behalf of each party or a child to the acquisition, conservation, or improvement of any property, and contributions to the welfare of the family (homemaker/parenting duties) throughout the relationship, including post-separation.
* Application to Case: The Court found broad equality of contributions up to separation. Post-separation, the Husband’s active management of the SMSF, contributions of $11,000, and managing tax returns and property upkeep were seen as a slightly greater contribution. Overall contribution assessment: 47% to the Wife and 53% to the Husband.
3. Adjustment for Future Needs (Section 75(2) Factors): Identify and assess the relevant factors for future needs, such as age, health, income earning capacity, care of children, standard of living, and financial resources of each party. The Court will adjust the percentage derived from contributions based on these factors to achieve a just and equitable outcome.
* Application to Case: The Wife’s age (63), health issues (anxiety, depression, panic attacks, past alcohol dependency), and precarious part-time employment were significant. The Husband’s professional background (finance professional) indicated a greater, though not currently fully realised, earning capacity (age 59). A 6.8% adjustment in the Wife’s favour was made to account for her vulnerability and lower earning capacity.
4. Just and Equitable: The final step involves a global assessment of the proposed orders to ensure they are “just and equitable” in all the circumstances of the case. This is a crucial “sanity check” to ensure the outcome is fair.
* Application to Case: The Court found it just and equitable to intervene, particularly given the ongoing joint trusteeship and co-borrower status for the SMSF mortgage, which meant the financial ties were not truly severed. The overall final division, after accounting for contributions and future needs, was determined to be 53.8% to the Wife and 46.2% to the Husband.
3. Equitable Remedies and Alternative Claims
When statutory law under the Family Law Act 1975 (Cth) is being applied, principles of equity are often woven into the “just and equitable” consideration under section 79. However, if a direct property order under section 79 were somehow unavailable or deemed inappropriate, alternative equitable doctrines could theoretically be explored.
If dealing with [Civil / Commercial / Property / Family / Estate] matters:
Promissory / Proprietary Estoppel:
* Did the other party make a clear and unequivocal promise or representation (e.g., “this property will be yours”)? In this case, the Husband asserted an informal agreement, implying a promise that the existing SMSF division would be final. The Wife’s belief in a continued interest, while not a direct promise to her, relates to the absence of a clear representation to the contrary regarding the SMSF.
* Did you act in detrimental reliance on that promise (e.g., renovating the property, resigning from a job)? The Husband might argue he relied on the informal agreement by investing his portion of the proceeds into a new dwelling and establishing his practice, assuming finality. The Wife relied on her belief that the SMSF was still jointly owned.
* Would it be unconscionable for the other party to resile from that promise? The Court’s finding that there was no agreement about the SMSF makes it difficult to establish unconscionable conduct based on a promise that didn’t exist. However, the continuation of joint liabilities (SMSF mortgage) would make it unconscionable for the Husband to deny the Wife’s interest without formal resolution.
* Result Reference: Even without a written contract, Equity may “estop” the other party from going back on their word. Here, the evidence showed no clear promise by either party to the finality of the SMSF division, thus limiting the applicability of estoppel to prevent the Court from reviewing the matter.
Unjust Enrichment / Constructive Trust:
* Has the other party received a benefit (money or labor) at your expense? Is it against conscience for them to retain that benefit without payment? The Wife could argue that by remaining a trustee and co-borrower for years, and not taking her entitlements, the Husband implicitly benefited from her continued support of the Fund without adequately compensating her for her share or contribution to its liabilities.
* Result Reference: The Court may order the restitution of the benefit or declare that you hold a beneficial interest in the asset via a Constructive Trust. The Court effectively achieves a similar outcome through its section 79 powers by recognising the Wife’s interest in the Fund.
4. Access Thresholds and Exceptional Circumstances
Regular Thresholds:
* Family Law Property Proceedings: For married couples, proceedings must generally be instituted within 12 months after the date on which a divorce order took effect. For de facto relationships, it is within 2 years after the end of the de facto relationship.
* Application to Case: The parties were divorced in mid-2023, and proceedings were initiated in April 2024, falling within the 12-month statutory limit. This was explicitly noted by the Court (“This is not an application out of time.”).
Exceptional Channels (Crucial):
* Family Law – Extension of Time: Even if outside the 12-month or 2-year limitation period, the Court may grant leave to apply for property orders if “hardship” would be caused to a party or child if leave were not granted. This is a discretionary power exercised cautiously.
* Application to Case: While not directly invoked as the case was filed in time, the underlying rationale (to prevent serious injustice) is always implicitly present in the “just and equitable” assessment under section 79, particularly when considering the long delay and the parties’ reliance on an informal arrangement.
5. Guidelines for Judicial and Legal Citation
Citation Angle:
It is recommended to cite this case in legal submissions or debates involving:
* The Court’s discretion to intervene in property disputes where informal agreements are incomplete or ambiguous, particularly concerning complex assets like SMSFs.
* The significance of continued joint legal and financial responsibilities (e.g., trusteeship, co-borrower status) as objective evidence of ongoing financial entanglement post-separation.
* The assessment of witness credibility in light of financial sophistication, emotional vulnerability, and documentary evidence.
* The application of section 75(2) factors (health, earning capacity) to achieve a just and equitable outcome, including specific percentage adjustments.
Citation Method:
* As Positive Support: When your matter involves parties who separated long ago but maintained ongoing joint legal and financial ties (such as shared superannuation funds or mortgage liabilities), citing Janner & Janner can strengthen your argument that the Court has a principled reason to exercise its section 79 jurisdiction to make property orders, notwithstanding any alleged informal agreements. It is also useful when arguing for a future needs adjustment based on health or earning capacity disparities.
* As a Distinguishing Reference: If the opposing party cites Janner & Janner to argue for the sanctity of an informal agreement, you should emphasize the following uniqueness of the current matter:
* The absence of any ongoing joint legal or financial liabilities or structures that bind the parties post-separation.
* Clear, documented evidence of a comprehensive, fully informed, and mutually understood informal agreement that explicitly covered all assets, including superannuation, at the time of separation.
* A significant and demonstrable change in circumstances that would render the existing order unjust and inequitable, unlike the situation in Janner & Janner where key financial entanglements persisted.
Anonymisation Rule: Do not use the real names of the parties; strictly use professional procedural titles such as Applicant / Respondent or Appellant / Respondent.
Conclusion
Janner & Janner [2025] FedCFamC2F 297 serves as a crucial reminder that the Australian family law system prioritises justice and equity over informal arrangements, especially when fundamental financial ties persist. The Court’s meticulous approach in disassembling the parties’ narratives, weighing subjective recollections against objective facts like ongoing joint liabilities, provides a clear pathway for resolving complex, long-standing disputes. This judgment underscores that a truly severed financial relationship requires a comprehensive and formal legal resolution.
Golden Sentence: True self-protection stems from the early understanding and mastery of legal rules.
Original Case File:
👉 Can’t see the full document?
Click here to download the original judgment document.