Voight & Zunino: Why “Zero or Everything” Is the Wrong Question

Written By: Simran Suvarna

Voight & Zunino [2025] FedCFamC1A 201 is a significant appellate decision regarding de facto property adjustment, interlocutory payments, and the correct application of Stanford under Pt VIIIAB of the Family Law Act as amended in 2024.

The case reiterates that a court’s task under s 90SM is not to be dictated by the parties’ competing proposals.

Background

The parties were in a de facto relationship from March 2013 to November 2020. They lived and worked on the respondent’s farming enterprise in regional New South Wales. They did not intermingle ownership of assets nor jointly incur any debts, and the respondent retained legal title to all substantial assets.

After separation, the appellant commenced proceedings under the:

• The Fair Work Act in 2021 for alleged unpaid farm wages, and
• Pt VIIIAB of the Family Law Act in 2022 seeking property adjustment orders.

In June 2023, the parties consented to an interlocutory order requiring the respondent to pay the appellant $300,000, with “characterisation” of that payment reserved to the trial judge.

The property trial was conducted on the basis that the asset pool was worth $17 million in property (comprised almost entirely of the respondent’s farm and associated assets), $1.7 million in liabilities, and $3.8 million in superannuation.

The appellant sought a cash adjustment of approximately $3 million (quantified by the primary judge as a 12.5 – 17.5% adjustment). The respondent proposed that the appellant retain the $300,000 already paid and that they each retain their respective assets and debts and the application be otherwise dismissed.

The Primary Decision

In Voight & Zunino [2025] FedCFamC1F 311, the primary judge dismissed the s 90SM application, finding it was not just and equitable to make the orders sought.

Applying Stanford v Stanford, the judge held that:

• the parties operated as “economic silos”.
• the applicant’s contributions were largely remunerated as employment.
• there was no principled reason to alter property interests.
• the $300,000 interlocutory payment was “likely a gift or payment sunk costs”.

The applicant’s Kennon claim also failed, with no conduct of the respondent being found to have rendered her contributions significantly more arduous.

The Appeal

The Full Court (Austin, Schonell and Curran JJ) allowed the appeal, set aside the dismissal, and re-exercised the discretion to award the appellant $131,113. Each party was otherwise to retain property in their possession and bear responsibility for their own debts. Costs certificates were granted to both parties.

The Court also discharged the interlocutory order made in June 2023, deeming it invalid as it was not made by reference to any identified head of power, while still recognising the payment itself in the final adjustment.

The Reasoning

• Misconception of the Just and Equitable Inquiry

The primary judge treated the case as a choice between granting the application as proposed or dismissing the application entirely. The Full Court held that this was a misconception of s 90SM discretion. The Court is not confined by parties’ proposals and must consider whether a property adjustment of less magnitude than that sought by applicant will produce a more just and equitable outcome for both parties.

• Failure to Consider Intermediate Outcomes

The primary judge quantified the appellant’s claim at either 12.5% – 17.5% and labelled this “not just and equitable”. However, he then failed to consider implementing a more modest outcome within the range between zero and $3 million.

• Interlocutory Payment Error

The Full Court held that:

• an order compelling payment must identify its head of power at the time it is made.
• mutual consent cannot cure a jurisdictional error.
• the “characterise later” practice is liable to cause problems regarding invalidity and inconsistency.
• the primary judge’s characterisation of the payment as a “gift or sunk costs” was not open – it was instead conjectural, contradictory to a compulsory court order, and speculative without an evidentiary foundation.

Re-Exercise of the Discretion

Applying the amended Pt VIIIAB provisions effective 10 June 2025, the Court:

• identified the existing assets and superannuation as $18,863,015 (held almost entirely by the respondent).
• found it just and equitable to make an order given the seven-year relationship and the “joint venture” nature of the farm work (as described by the respondent himself).
• determined a 3% adjustment favouring the appellant, reflective of the heavy capital contributions by the respondent and long-standing labour contributions by the appellant beyond salaried work.
• made no Kennon adjustment and no positive s 90SM(5) adjustment beyond recognising the prior payment.
• gave credit for the portion of the $300,000 not retained by the appellant ($268,894) under s 90SM(5)(n).

The Outcome

The appellant’s net entitlement therefore equated to $296,996. However, as she had already retained property worth $165,883, the respondent was ordered to pay a further $131,113 within 28 days.

Why it Matters?

The decision clarifies:

• that the Court is not bound to make a choice between the parties sought outcomes, and the Stanford analysis requires consideration of whether the making of any tailored order would be just and equitable.
• interlocutory payment orders must be supported by an identified head of power at the time they are made.
• interim payments can still be accounted for in final adjustments even if the interlocutory order is discharged.
• modest percentage adjustments can be just and equitable in non-intermingled de facto relationships.
• the correct application of the amended Pt VIIIAB provisions.