Whiton & Dagne [2019] FamCAFC 192

The Worth of Contributions in a De Facto Relationship is the same as Contributions in a Marriage

In late 2019 Freeman Lawyers was involved in a successful appeal to the Full Court of the Family Court of Australia. We acted for the de facto wife. The Full Court confirmed that contributions made during a de facto relationship are the same as contributions made during a marriage.

Another important part of the judgement is that even if a de facto relationship was punctured by periods of separation, the contributions made during the periods of separation can be taken into account.

The de facto wife was wholly successful with her appeal.

Costs and Conduct

The Full Court made a costs order against the de facto husband. The court took into account the de facto’s husband conduct during the trial and on appeal.

As to the de facto husband’s conduct at trial, the Full Court stated at paragraph 63:

“With respect to the latter submission, on our review of the record and transcript and submissions at trial we consider that there was significant contribution by the husband, in the manner of the conduct of his case and the submissions put to the trial judge on the husband’s behalf on central issues, which contributed to the errors on the part of the trial judge which we have identified.”

The Full Court also took into account the de facto husband’s conduct on appeal and stated at paragraph 64:

“Moreover, the errors which we have identified and addressed, ought to have been obvious to the husband and, at the latest, by the time the husband received the wife’s Summary of Argument for the appeal. An obvious and sensible course would have been for the husband to concede errors on the part of the trial judge and thus to concede the appeal, but this the husband did not do, with the costs consequences for the wife.”

In relation to the amount of legal fees sought by the de facto wife, the court stated at paragraph 66:

“Having regard to the particulars contained in the wife’s Schedule of Costs we consider the sum sought by the wife for her costs to be reasonable and indeed is in a modest total having regard to the nature of the appeal, and by comparison with like appeals and consequent costs.”

Key Takeaways


  1. The Full Court was not aware of an authority that supports the notion in property settlements that a marriage is more important than a de facto relationship when it comes to contributions. The judgement referred to the trial judge’s ‘discrimination’ of the notion that marriage is superior and that this notion ‘infected’ the trial judge’s perspective of the contribution-based entitlements of the parties.
  2. Although the de facto wife did not directly contribute to the purchase or mortgage of a property, her contributions of wage earning, homemaking and parenting along with her mutual support were contributions towards the property. 
  3. It was reaffirmed that “a sharp rise in property value brought about by a rezoning or resumption is properly treated as a windfall gain for which neither party can take sole credit”. 
  4. Failure to consider the s 90SF(3) factors when they have been submitted by a party was a “fundamental flaw in the exercise of discretion”.
  5. A judge should “show the extent to which the parties’ arguments have been understood and accepted” and explain why one party’s case is preferred.

Periods of Separation

  1. Contributions during periods of separation should be considered, particularly if a party is financially supporting and caring for the children of the relationship during that period.
  2. The de facto husband paying off debts acquired by the de facto wife during a period of separation because of DV should not be considered a contribution on the de facto husband’s part. Further to that, consideration should be given to the de facto wife’s reasons for incurring the debts.
  3. Paying off a debt caused because of separation resulting from domestic violence is not an act of ‘generosity’ by the DV perpetrator. 


  1. Costs can be awarded against a party when the errors of the trial judge ought to be obvious to the parties. The “obvious and sensible course” would have been to concede the errors of the trial judge and thus concede the appeal.
  2. A Costs Order is justifiable in a case where one party is in a substantially superior financial position and the appeal has been wholly unsuccessful.

A full copy of the judgement can be found here – Whiton & Dagne [2019] FamCAFC 192 (31 October 2019)