Famous family law cases Australia

Key insights

• Landmark family law cases shape how courts interpret and apply the Family Law Act 1975 (Cth).
• Parenting matters are determined by the best interests of the child, with principles from cases such as Rice v Asplund and A v A continuing to guide modern decisions.
• Property settlements follow a structured framework, clarified in cases such as Hickey and refined by the High Court in Stanford v Stanford.
• Family violence, coercive control and financial abuse can be relevant in both parenting and property proceedings, but must be supported by evidence.
• Financial agreements (pre-nups and post-nups) must strictly comply with legislative requirements or risk being set aside.
• Full and frank financial disclosure is critical as courts may draw adverse inferences where a party fails to disclose.
• Appeals face a high threshold; not every disagreement with a decision amounts to appealable error.

 

Every family law matter has its own idiosyncrasies, whether it’s a late inheritance, early pre-nup or parentage disputes; they all require a unique and discretionary review.

Some family law matters have been more unique than most, have caught the limelight, made their way onto the mainstage, and defined the cornerstones of family law proceedings.

In this article, we will examine some of the more seminal cases that have influenced modern-day family law. 

 

Parenting cases

 

Rice v Asplund [1978] FamCA 84; (1978) 6 Fam LR 570

What happened: 

This matter concerned a reconsideration of care arrangements for a three-year-old girl. A court had previously made orders for the girl to live with her father. However, nine months later, the mother made an application to vary the order to seek that the girl live with her and spend time with her father. 

This case is among the most well-known in family law and addresses what is required to revisit a final parenting order. This case has now made its way into legislation under the 6 May 2024 amendments to the Family Law Act 1975 (Cth), which introduced a new section 65DAAA, under the heading “Reconsideration of Final Parenting Orders”. 

There has been much discussion regarding whether the legislative changes represent the Rice v Asplund principle. 

The cases of Whitehill & Talaska [2024] Fed CFam C2F 768 and Rasheem & Rasheem [2024] Fed CFam C1F 595 both agreed that the wording of section 65DAAA deviated from Rice v Asplund and stated that a significant change in circumstances was not a prerequisite for revisiting final parenting orders. 

This ambiguity subsisted until the full court handed down their judgment in Radecki & Radecki [2024] FedCFamC1A 246, which then reverted the previous decisions and upheld that it was the statutory intention to codify the principles set out in Rice v Asplund.

What we can learn: 

Rice v Asplund is still good law and clarifies section 65DAAA and requires that it must be satisfied that there has been a significant change in circumstances before a reconsideration of final parenting orders. 

 

Pickford & Pickford [2024] FedCFamC1A 249

What happened:

This matter concerned complex family law proceedings, which were marred by allegations of family and domestic violence. The court considered the oft-quoted ‘coercive control’ as it had been gaining more traction in social settings. 

The father sought an equal spend time arrangement with the children. The mother sought that the children live with her and spend time with the father on alternate weekends. 

In the first instance, the trial judge found that the husband had perpetrated family violence against the mother through coercive and controlling behaviour. This was appealed. 

The full court found that it was not open to the trial judge to make a finding of family violence based on the evidence relied upon by the mother. 

One piece of evidence relied upon by the mother was that the father supposedly refused to consent to permit a disbursement of funds to pay for her ongoing legal fees, which constituted financial abuse and controlling behaviour. The mother brought three applications for such disbursements. The father consented to the first but refused the second two. 

On appeal, the full court held that a litigant does not commit family violence by just refusing to consent or submit to an order that the other seeks. 

The matter was remitted for another hearing. 

What we can learn: 

The effect of family violence and ‘coercive control’ on family law proceedings is complex. Pickford reinforces that family violence needs to remain broad to safeguard victims. Conversely, to satisfy a positive finding of family violence, there needs to be appropriate evidence in support of the allegations. 

 

A v A: Relocation Approach 2008 FamCA 751

What happened: 

This matter concerned a living dispute for a child where the mother sought orders for the child to live with her in Portugal, the father opposed and sought orders for the child to stay with him in Sydney. 

This matter is a leading decision on how a family law court must determine a relocation application.

What we can learn: 

In a relocation, the court needs to ultimately decide the case on the basis of the best interests of the children. The best interests of the child are to be evaluated by taking into account considerations, including the legitimate interests of both the resident and non-resident parent. Compelling reasons for, or against, the relocation need not be shown.

The interests and desires of parents are relevant. For example, a parent’s welfare, happiness or employment opportunities have been considered as relevant. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights.

 

Re K (1994) 17 FamLR 537 (1994) 117 FLR 63

What happened:

This matter concerned a complex parenting dispute, where the wife had passed away, and the husband was charged with murder. The husband was unrepresented at trial. The paternal grandparents were involved as intervenors in the matter.

Re K is the authority for what the court needs to consider for the appointment of an Independent Children’s Lawyer, more commonly referred to as an ICL.

What we can learn: 

The court may appoint an ICL on its own initiative or on the application of the parties, with consideration of the following thirteen factors:

1. Cases involve allegations of child abuse, whether physical, sexual or psychological.
2. Cases where there is an apparently intractable conflict between the parents.
3. Cases where the child is apparently alienated from one or both parents.
4. Where there are real issues of cultural or religious differences affecting the child.
5. Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare.
6. Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare.
7. Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children.
8. Any case in which, on the material filed by the parents, neither seems a suitable custodian.
9. Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long-standing custodial arrangement or a complete denial of access to one parent.
10. Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or, for all practicable purposes, exclude the other party from the possibility of access to the child.
11. Cases where it is proposed to separate siblings.
12. Custody cases where none of the parties are legally represented.
13. Applications in the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties.

 

In the Marriage of Rose (1976) 12 ALR 107; (1976) 2 Fam LR 11, 101

What happened: 

This matter concerned an unsuccessful appeal brought by a father against parenting orders for the primary care of three children. There were welfare concerns for the children, with the father alleging that the mother would often leave the children with babysitters and generally neglect the children. Conversely, the father was working full-time and was unable to arrange suitable caretakers when he was working. The judge was left to determine the best carer for the children.

The judge reached a decision that the mother was the more appropriate carer than the father. 

The father appealed, making various references to the evidentiary burden placed on the trial judge, in that, in some areas, there was a dearth of evidence, and in other parts an overburdensome amount. 

On appeal, it was reiterated that the discretion exercised by the judge, while it may not have been the same decision reached by another judge, was not beyond a judge’s discretion to make the decision that they did. 

What we can learn: 

It is not sufficient to obtain an appeal of a judgment merely because a different judge would have made a different decision, or given particular factors greater or less weight.

 

Property cases

 

In the Marriage of Hickey (2003) 30 Fam LR 355, [39]; [2003] FamCA 395

What happened: 

This matter concerned a relatively simple property dispute between a husband and wife. However, the court brought together known case law to set down the preferred approach in determining an application for an alteration of property interests. 

This matter helpfully elucidated how the court approaches a family law property settlement, utilising a four-step approach. This approach has been used for some time, but has now made its way into legislation on 10 June 2025. This is set out in section 79 (3) – (5) (or section 90SM (3) – (5) for de facto relationships). 

This approach is: 

1. Firstly, the court should identify the value of all property, liabilities and financial resources of the parties; 
2. Secondly, to consider the contributions made by the parties to the relationship;
3. Thirdly, to consider the parties’ future circumstances; and
4. Fourthly, to consider what order is just and equitable in all the circumstances.

What we can learn: 

The four-step property settlement process can be a practical guide for parties to a family law matter to resolve their dispute. Practically speaking, parties can put together an asset pool of all property they own (in either party’s name), then consider what they each brought to the relationship (financial and non-financial), consider who needs the most help to support themselves at the end of the relationship (such as age, earning capacity, health) and what agreement would be fair. 

 

Stanford v Stanford [2012] HCA 52

What happened: 

This matter could be the most well-known case in family law property proceedings. The unusual facts of this case were that the marriage had not broken down; the wife was incapable of making decisions for herself and resided in an aged care home, and the husband was the sole owner of their former matrimonial home. The proceedings were brought by the daughter of the wife from a previous marriage. 

The husband in the case argued that it was not ‘just and equitable’ to alter his interests in the home at all.

The matter went to the High Court on appeal by the husband, where they found that a court must firstly find it just and equitable to make an alteration to the parties’ property at all, before taking any further steps set out in the four-step process. 

This matter is often referred to as the fifth step of the property settlement process that takes place before the four other steps. This case made its way into the family law legislation on 10 June 2025, under section 79(2) (or section 90SM(2) for de facto couples). 

What we can learn: 

Because of the unusual facts of Stanford and similar cases that have followed, the approach will only apply in a small number of cases. 

However, it does mean that the existence of a marriage or relationship does not necessarily mean that a court has the jurisdiction to alter or declare interests in property. It depends on the nature of the case. 

 

Kennon v Kennon (1997) 22 FamLR 1

What happened:

This matter concerned a property settlement application made by a wife seeking damages for assault and battery through the settlement. 

Kennon was the first full court decision in which they considered that domestic violence should be considered in a party’s contributions. They considered that where there is a course of violent conduct by one party towards the other, shown to have an adverse impact on the other party’s contributions, in that they were made more arduous than they should have been, should be considered in assessing parties’ contributions. 

Modernly, this case has now made its way into the family law legislation on 10 June 2025 and the court is to take into account the effect of family violence as far as it is relevant to a party’s contributions (section 79(4)(ca) or section 90SM(4)(ca)) and their future circumstances (section 79(5)(a) or section 90SM(5)(a)). 

What we can learn: 

Family violence is relevant to a property settlement if it has affected a person’s contributions or future circumstances. This could result in a party receiving an adjustment to their property interests for such violence. 

 

Shinohara & Shinohara [2025] FedCFamC1A 126

What happened: 

This matter revisited the previous authority on the issue, namely Kowaliw & Kowaliw (1981) FLC 91-092, which served as precedent for arguments for ‘wastage’,  ‘addbacks’ and ‘notional property’. 

Shinohara confirmed that notional property does not exist and cannot form part of a balance sheet, dividing the parties’ current assets. 

While assets no longer existing cannot be utilised; the changes to the Family Law Act 1975 (Cth) on 10 June 2025 make clear under section 79(5)(d) (or section 90SM(5)(d) for de-facto couples) that wastage of the parties can be taken into consideration as being relevant to a parties’ future circumstances. 

What we can learn: 

Only existing property of the parties is to be identified and divided or adjusted between the parties. Given this change, it is more important than ever to preserve parties’ assets post-separation. If money is spent, wasted or otherwise used up, then it will be very difficult to recover. 

 

Thorne and Kennedy [2017] HCA 49

What happened: 

This matter referred to a financial agreement (pre-nup) entered into by a husband and wife before a marriage, where the wife held no substantial assets, and the husband had circa $20 million. The wife was told by the husband that if she did not sign the financial agreement, then the wedding would not proceed. 

The wife in the matter was advised by her lawyer that the financial agreement was entirely inappropriate. The wife proceeded to sign the financial agreement. 

After the marriage was dissolved, the wife signed another financial agreement, which she also received legal advice about.

The trial judge found that both financial agreements were vitiated by duress and undue influence. This was overturned on appeal. On a further appeal to the High Court, they unanimously ruled that the financial agreements were characterised by unconscionable conduct and affirmed by five of the presiding Justices that undue influence was present; the financial agreements were subsequently set aside. 

What we can learn: 

Financial agreements can be set aside due to unconscionable conduct and undue influence, despite legal advice being given. Legal advice cannot displace section 90K factors (circumstances in which a court may set aside a financial agreement). 

 

Black v Black (2008) 216 FLR 422; [2008] FamCAFC 7

What happened: 

This matter concerned a financial agreement that was entered into by a husband and wife during their marriage in 2002. The parties were married for 18 months and separated in 2003. The financial agreement provided for a number of conditions, including that the husband would sell his house and the proceeds would be put into their joint account, and the wife’s personal injury compensation claim would also be contributed to the parties’ joint account, then the joint account would be split equally. 

However, following the parties’ separation, the wife’s personal injury payout was far less than anticipated, in the amount of $41,000. As such, the husband commenced proceedings to set the financial agreement aside. 

While the agreement was initially upheld by the first court, on appeal, the financial agreement was set aside due to non-compliance with Pt VIIIA of the Family Law Act 1975 (Cth), as the financial agreement did not contain a specific statement providing that the parties had received independent legal advice. 

What we can learn: 

Financial agreements can be tricky to get right and disastrous should you get them wrong, including if they are insufficient in the formal requirements under the legislation.  Strict adherence to the legislation is required to ensure the viability and enforceability of financial agreements. 

 

Medlow & Medlow (2016) 54 Fam LR 389; [2016] FamCAFC 34

What happened: 

This matter concerned an application for leave to appeal and redefined how the court approaches appeals. The circumstances in Medlow were such that, in addition to the family law proceedings, there were three ongoing proceedings in other courts. There were orders made in the family law proceedings restraining the husband from affecting property of any kind; however, in one of the other proceedings, the husband consented to orders that froze the husband’s assets up to $15,500,000. This caused issues later as the wife was not given notice of the frozen assets. 

The wife appealed later orders. 

Previously, the requirements for leave to appeal were set out in the matter of In the Marriage of A J and G M Rutherford (1991) 105 FLR 4; 15 Fam LR 1; (1991) FLC 92-255, and it was required to be shown that there had been an error of principle, or a substantive injustice had taken place.

Medlow redefined this with similar wording as Rutherford, however, there was a new requirement to provide both the error or sufficiency of doubt of principle, and a substantial injustice would occur, rather than either one. 

What we can learn: 

There is a high threshold to appeal a matter, and there will require proof that there has been an error of law and also a substantial injustice that would take place. 

 

Heath & Heath [2018] FamCAFC 28

What happened: 

This matter concerned an application brought by a husband to extend the time to file a Notice of Appeal against orders made on 23 August 2017 for final property settlement orders, which required the Notice of Appeal to be filed by 20 September 2017. 

The court firstly considered the applicable principles in relation to an extension of time being whether it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application for extension of time and the prospects of success in the appeal. 

The husband filed his notice to appeal one day late, which, as sworn in the husband’s former solicitor’s affidavit, was due to the fault of the solicitor themselves rather than that of the husband. 

The court considered that it was relevant that it was the result of the husband’s solicitor’s action, or rather inaction, and there was no contributory failure of the husband in the delay. This is despite the fact that the husband only sought legal advice the day immediately prior to the filing date for the notice of appeal. 

The court determined that there was no particular factor that was determinative in granting leave for a late filing, but rather it requires that justice is done. 

The court ultimately decided that there was nothing in the husband’s filed material that suggested an appealable error took place. 

One interesting, but unmentioned factor in Heath was that it was clear that the husband’s application, both written and oral, was poor and ill-prepared. The husband appeared for himself, had language difficulties and failed to place relevant evidence before the court. The wife was represented by solicitors and a barrister, who objected to the introduction of much of the husband’s evidence. 

What we can learn: 

Filing a notice to appeal within twenty-eight days from the judgment date is critical, otherwise there will need to be a reliance on ensuring justice is done in your case.  Expert legal advice should also be sought as to the prospects of success in applying for an appeal. 

 

In the Marriage of S W and W H Weir (1992) 16 Fam LR 154

What happened: 

This matter concerned a successful appeal brought by a wife in proceedings against orders for a property settlement and child maintenance due to a lack of disclosure and hidden income.

The wife’s accountant noticed the sum of $153,605 was not recorded on the books of the company but rather pocketed by the husband.

Evidence was brought in by one of the parties’ sons, who stated that it was the husband’s practice to pocket cash payments without recording them, and he had been instructed by the husband to make false entries to mask certain transactions.

The trial judge decided there was not enough evidence to support the allegations made by the wife.

On appeal, the court stated that with the combined evidence of the accountant and the son and the knowledge that the husband had not made full disclosure, it was appropriate to make a finding in favour of the wife.

It was noted that it was not as relevant that the evidence was in favour of the wife’s allegations, but rather it was clear that there was deliberate non-disclosure, and in those circumstances, the court should not be unduly cautious about making findings in favour of the innocent party. 

The wife also received a costs order in her favour. 

What we can learn: 

A non-cautious approach in favour of the innocent party is appropriate where there is clear evidence of non-disclosure. The exchange of disclosure is vital. Even in circumstances where a party is taking cash payments without documenting them, they can still be held liable for non-disclosure. 

 

Farmer & Bramley (2000) FLC 93-060

What happened: 

This matter concerned a lotto win by the husband after the separation. The parties started their relationship in 1983, had one child together and separated in January 1995. In September 1996, the husband won $5,000,000 in the lottery. 

The judge decided that over the course of the parties’ twelve years together, the wife made very considerable contributions. The wife initially received $750,000 of the $5,000,000, which was overturned on appeal to $140,000.

What we can learn: 

All property up until the date of a property settlement needs to be taken into consideration. Just because an asset came into the relationship after separation (before a property settlement) does not necessarily mean that the non-benefitting party should be excluded from the windfall. 

 

Falk and Falk (1977) 3 Fam LR 11, 238

What happened: 

This is one of the more well-known cases in divorce proceedings. This matter concerned a dispute over the separation date between a husband and wife who continued to live together, including at the time the application came on for hearing. The husband disputed the separation date; the wife argued that they separated but remained in the same house for the children’s benefit. 

The trial judge accepted that the marriage had broken down, but was unable to satisfy the test that the parties had lived separately and apart for the required time. The wife appealed.

On appeal, the full court disagreed with the trial judge and set out the requirements to satisfy a separation, making it clear that separation does not require the parties to live separately.

The court brought together what constitutes a separation between parties, that being there needs to be an intention to separate, an act to indicate that separation and a need to communicate that separation, whether that is expressly stated or implied from the action itself.

What we can learn:

Separation can occur while the parties are living in the same house; physical separation is not a condition precedent. There are three distinct elements of separation: intention to separate, acting on that intention, and communicating that intention. 

 

Family law matters are complex

In Australia, family law is constantly shaped by the courts. Landmark decisions clarify how the Family Law Act 1975 operates in practice across family law matters such as parenting disputes, relocation cases, complex property settlements, and financial agreements.

These cases reinforce key themes: the best interests of children remain paramount, full financial disclosure is essential, strict compliance with legislative requirements matters, and appeals are not simply a second chance at a different outcome. Above all, family law is discretionary and fact-driven, and the specific evidence in each case determines the result.

 

If you are looking for help with your family law matter, whether it is parenting issues, property settlement, divorce or spousal maintenance, Australian Family Lawyers can help. Please get in contact if you would like our assistance.