A recent Full Court decision of the Federal Circuit and Family Court of Australia offers a useful, practical illustration of how property is divided when a de facto relationship ends and, just as importantly, of the limits on challenging that division on appeal.
In Bendon & Sloan [2026] FedCFamC1A 130 (judgment 27 July 2026), the appellant husband ran ten grounds of appeal against the trial orders. Every one of them failed. The Full Court dismissed the appeal in full and ordered the husband to pay the wife’s costs, fixed at $12,664.
The trial orders divided the parties’ property and superannuation 45% to the wife and 55% to the husband. That outcome was built on two steps: an assessment that the parties’ contributions favoured the husband 60/40, and a further 5% adjustment back to the wife to reflect the parties’ current and future circumstances under section 90SM(5) of the Family Law Act 1975 (Cth).
For separating couples and their advisers, the decision is a helpful current authority on two questions that arise again and again – how the Court treats debts run up after separation, and how much reasoning a judge must give to justify a percentage adjustment.
The background in brief
The parties were in a de facto relationship from around 2011–2012 and separated under one roof on 1 May 2021. They had three children, aged 13, 10 and 7 at the time of trial, the eldest having been diagnosed with autism in 2016.
Their circumstances were markedly different. The husband, 45 and in good health, was a professional earning approximately $171,888 a year. The wife, 36, had not worked since 2012, received a Disability Support Pension of roughly $29,874 a year, had been diagnosed with a chronic disease in 2022, and had significant mental health hospitalisations in 2024. The husband had also brought substantially greater financial resources into the relationship, including real estate he retained unencumbered throughout.
The children lived primarily with the wife until September 2024. Final consent parenting orders made in April 2025 saw them move to live with the husband. A Heads of Agreement reached in April 2025 (proposing a 40/60 split in the husband’s favour) fell apart before trial, with each party blaming the other. The matter went to a two-day trial in mid-November 2025, and the primary judgment was delivered on 23 December 2025.
What the Full Court decided
Debts incurred after separation can be kept off the balance sheet
Three grounds attacked the way the trial judge dealt with liabilities. Each failed, and together they confirm that a trial judge has a real discretion over how post-separation debts are treated.
The husband’s $14,307 credit card liability was excluded from the pool. The Court accepted that a discretion exists to exclude post-separation liabilities under section 90SM(5)(e) (applying Han & Han), and that this was an appropriate case to exercise it, the bulk of the debt was the husband’s own legal fees, and including it would have meant the wife indirectly funding his litigation.
By contrast, outstanding private school fees of $5,955.95 and subpoena compliance costs of $2,164 were properly treated as joint liabilities. The husband had wanted the child to stay enrolled and the income disparity supported shared responsibility for the fees; and the need for the subpoena had been created by the husband’s own inadequate disclosure. The lesson is that these are evaluative judgments, and the Court will look to who benefited from, or caused, the expense.
Spending your own money on legal fees can still count against you
One of the more significant points concerns money spent after separation. The trial judge found the husband had depleted around $215,000 post-separation, after paying the wife $95,000 and meeting expert fees.
Crucially, this was not a finding of waste or recklessness of the kind considered in Kowaliw. Instead, the funds were treated as having been appropriated for the husband’s sole post-separation benefit (largely his own legal fees and child support) and brought to account under section 90SM(5) (consistent with Townsend and Omacini). To ignore it would, in effect, have required the wife to subsidise the husband’s legal costs and support obligations. In short, a party does not need to have behaved improperly for their post-separation use of capital to be relevant to the final division.
Reasons for a percentage adjustment do not need to be a mathematical formula
The husband argued the trial judge had not adequately explained the 5% adjustment made in the wife’s favour. The Full Court disagreed. The judge had identified three (non-exhaustive) classes of consideration: the health and income/earning-capacity disparity between the parties; the husband’s ongoing role as primary carer alongside the wife’s limited ability to contribute financially to the children; and the payments the wife had already received against the husband’s greater post-separation use of capital (a net difference of around $155,000).
Applying Steinbrenner, the Court confirmed that the “leap from words to figures” does not require arithmetic precision. Reasons are adequate if the path of reasoning can be discerned, expressly or by implication, and there is no requirement to separately weight each factor (Merriman & Merriman; Paul & Paul). This is reassuring for the robustness of well-reasoned discretionary judgments, and a reminder that appeals built on a demand for mathematical exactness are unlikely to succeed.
You cannot run new arguments for the first time on appeal
Several grounds foundered on a basic appellate principle: parties are bound by the way they conduct their case at trial. Complaints about the wife’s own post-separation spending (a $19,218 insurance payout) had never been put at trial (no cross-examination, no submissions) and could not be raised for the first time on appeal (Coulton v Holcombe; Metwally; Macedonian Orthodox Community Church). The same fate met objections to expert evidence that had gone unchallenged at trial; the weight to be given to competing expert opinions is quintessentially a matter for the trial judge (CDJ v VAJ; Gronow v Gronow).
The Court also declined to disturb the judge’s treatment of the wife’s withdrawn family-violence and risk allegations under section 90SM(5)(w). Without quantified evidence of the additional costs caused by responding to them, and given that complaints about a party’s litigation conduct are more naturally dealt with through a costs application, there was no error in leaving them out of the property division.
Practical implications
For anyone facing a property settlement, the decision carries several practical messages:
- If you intend to rely on the other party’s spending after separation, it must be pleaded and put squarely at trial, through cross-examination and submissions. It cannot be raised later on appeal.
- Drawing down joint or joint-adjacent capital after separation to fund your own legal fees or child support can be brought to account against you, even without any finding of misconduct.
- Where a debt substantially represents one party’s own legal costs, that is a strong basis for excluding it from the asset pool.
- Objections to expert evidence (including reliance by one expert on another’s untested opinion) must be raised at the time. Silence at trial forecloses the point on appeal.
- Withdrawn family-violence or risk allegations are unlikely, without evidence of a concrete financial impact, to justify an adjustment; the costs jurisdiction is usually the better avenue.
Costs
Costs followed the event. Helpfully, the appellant had conceded that a costs order would be appropriate if the appeal failed and did not dispute the amount ($12,664), a sensible and realistic position, and a useful reference point for costs concessions in unsuccessful appeals of this kind.
Conclusion
Bendon & Sloan does not break new ground so much as it confirms, clearly and currently, how the Court approaches some of the most common flashpoints in property litigation. It underlines the breadth of a trial judge’s discretion over the balance sheet, the reach of section 90SM(5) in accounting for post-separation conduct short of waste, and the practical reality that a carefully reasoned discretionary judgment is difficult to unsettle on appeal. The strategic decisions that matter (what to plead, what to put in cross-examination, and what to object to) are almost always made at trial, not afterwards.
If you would like advice about a property settlement, whether following a marriage or a de facto relationship, our experienced family law team can help. Contact Owen Hodge Lawyers to arrange a consultation.