A recent case of Tiang & Pen [2026] FedCFamC1A 121 provides a good reminder for the weight that parenting contributions in property proceedings can be afforded, even in the context of a short defacto relationship.
Brief Background:
- The parties had two children together (aged 13 and 12 at the time of hearing).
- In the primary proceedings, objection was raised as to the existence of a defacto relationship. After a discrete hearing, it was determined that the parties cohabited in a de facto relationship for a period of 3 years 8 months.
- The matter thereafter proceeded to final hearing. The defacto wife sought an equalisation of the parties assets, and the defacto husband sought an adjusting payment to the defacto wife reflective of her receiving 10% of the parties combined assets.
- The net property pool was found to be $3,477,870.
- It was found that the defacto husband brought the significant assets into the relationship, and the defacto wife made no direct or indirect contribution to the acquisition, improvement or conservation of those assets. Her contributions were characterised as being wholly non-financial, in her role as a parent.
- The defacto wife undertook the substantial majority of parenting responsibilities before, during and after cohabitation. Since separation the respondent had spent no time with the children. Her evidence was largely uncontested, and finding were made in support of the defacto wife’s parenting contributions.
- The primary Judge made a contributions assessment to the defacto wife in the amount of 2%. He thereafter made an adjustment to the defacto wife in the amount of 8.5% as a result of her income and caring responsibilities for children of the relationship; producing an overall division of 10.5% to the defacto wife / 89.5% to the defacto husband.
- The defacto wife appealed.
Discretionary error and outcomes that are “plainly wrong”
The defacto wife’s appeal focused on the primary notion that the Primary Judge’s Assessment of the defacto wife’s contributions as primary carer and parent were manifestly unreasonable or unjust.
Submissions on behalf of the defacto wife, among other things, went to the notion that the primary judge must have only considered the defacto wife’s contributions as parent within only the period of cohabitation, and did not take into account her primary caring role prior to and post the defacto relationship.
Submissions provided on behalf of the defacto husband primarily went to the notion that the primary judge did consider the mother’s parenting contributions, and the determination was within the Judges discretion to make, and thus no appealable error was made. Another argument was made on behalf of the defacto husband that the court should have regard to the overall outcome to the wife, as opposed to critically assessing only the contributions-based outcome. It appears in this submission, the defacto husband is alluding to what could be described as quite a favourable adjustment to the defacto wife pursuant to section 90SM(5), and that the totality of the outcome is not so outside the reasonable discretion so as to be considered ‘plainly wrong’.
Schonell J, in his reasons and amongst other things, stated the following:
[At Para 24] … The primary judge’s task was to assess the contributions of both parties in a holistic way. The unchallenged evidence was that the appellant had made parenting contributions over 13 years and, for five of those years, had undertaken all parenting responsibilities. As Mason J observed over 40 years ago, parenting contributions are to be given “substantial and not merely […] token” consideration (Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 623).
[At Para 25] … The only adequate explanation for the assessment of the appellant’s contributions at 2 per cent, on those findings, is that her parenting contributions were given only “token” consideration.
[At Para 27] … While the language in House v The King at 505 directs appellate attention to “the result embodied in [the] order”, which here was a division of the parties’ overall property of 10.5 per cent to the appellant, it is reductive to ignore how that result was achieved. The segmented analysis adopted by the primary judge requires scrutiny because it was the sum of the component parts that produced the overall result, which was unjust and inequitable.
The appeal judgment reinforced the principle (citing Mallett v Mallett) that parenting contributions are to be given “substantial and not merely … token consideration”.
The court is not confined to the actual period of the relationship when taking account of contributions and can look to the situation both before and after cohabitation (G and G (2000) FLC 93-043; [2000] FamCA 1075 Although the period of cohabitation was relatively short, the defacto wife made parenting contributions spanning approximately 13 years. Contributions are to be considered holistically.
Secondly, the judgement also reinforces the notion that parenting contributions are to be considered both within the contributions analysis, and then again when determining what, if any, adjustment should be made. One is a retrospective assessment, and the other prospective. A generous adjustment will not cure a ‘substantially’ or ‘plainly’ wrong contributions assessment, as the overall result is the sum of its parts. If one assessment was ‘plainly wrong’ then the overall outcome is ‘plainly wrong’.
The Court allowed the appeal and then proceeded to re-exercise discretion. The court assessed the defacto wife’s contributions based entitlements at 16.5%. The Court determined the original adjustment calculated at 8.5% by the primary Judge remained appropriate. The outcome was an overall division of 25% to the defacto wife and 75% to the defacto husband.
Written by
Sophie Wilson
Family Law Solicitor
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