Gift to Your Child or to the Couple? Full Court Sends $23 Million Gift Case for Rehearing
Many Sydney families help their adult children with money, from a house deposit to something much larger. If the marriage later breaks down, one question can decide a great deal: was that money a gift to your child alone, or a gift to the couple?
On 6 November 2026, the Full Court of the Federal Circuit and Family Court of Australia allowed an appeal in Massen & Massen [2026] FedCFamC1A 200. The trial judge had not properly explained why $23 million from the husband's mother was treated as a contribution by both spouses. The property case will now be heard again by a different judge.
The significance of treating this gift as a joint contribution, rather than a contribution by the husband, is immense. If it is considered a husband's contribution, he can seek more from the available property pool, if it is a joint contribution, it will not assist him.
Overview
The couple's net assets were a little over $56 million, and it was not disputed that the property came from gifts and bequests from the husband's parents.
The trial judge found that gifts and bequests totalling just under $30 million were made to the husband. But a separate $23 million, paid by the husband's mother into a family trust, was found to be a contribution by both spouses.
The Full Court held the reasons for that finding were inadequate and the path of reasoning was "opaque".
One property order was set aside and the case was sent back for a rehearing.
What happened
The couple began living together in 2007, married in 2009 and separated in early 2024. The husband said every payment from his parents was a gift to him alone, and so his contribution. The wife, supported at trial by the husband's mother, said the gifts were made to both of them.
The trial judge looked at each gift separately and asked what the person giving the money intended. Two findings went the husband's way:
A property he received partly as a gift from his father and partly under his father's will was a gift to him. The will did not mention the wife.
$18.5 million paid in 2018 was a gift to the husband, even though it went into the couple's joint account. The judge said the joint account was "simply where the funds were received". A January 2018 letter from the husband's father to his bank, saying he wanted to make a substantial gift to each of his children, was "a clear and unambiguous contemporary statement of intention".
For the $23 million, the judge said the mother may well have intended the wife and children to benefit, but the gift would not have been made if the husband had not been her son. The judge then said that "nonetheless" it must be seen as a contribution by both spouses.
Overall, the orders divided the property 67% to the husband and 33% to the wife. The husband appealed only one order: the order giving the wife a residential property valued at $8.75 million.
What the Full Court decided
The Full Court (Williams, Kari and Parker JJ) upheld the husband's complaint that the reasons were inadequate.
A judge must explain their reasoning on the points that matter most, so the parties can see how their case was dealt with. If a party raises significant evidence or argument, the judge should deal with it. Reasons are not adequate if the reader is left to guess which path the judge took.
Here, the word "nonetheless" suggested the earlier findings did not support the conclusion, and the reasons did not explain the gap. The husband's lawyers had asked the judge to treat the mother's evidence with caution, including her evidence that the $23 million was meant for both spouses. The reasons did not engage with those submissions or that evidence.
Because of this, the Full Court said it could not properly decide whether the finding was open on the evidence. It deliberately expressed no view on who the gifts were intended for, because that will be central to the rehearing. The appeal was allowed and the matter remitted for rehearing.
What this means for you
Intention at the time matters. The trial judge said "the best evidence is what was said and done at the time", not what someone says years later.
A joint account does not decide it. Money paid into a joint account was still found to be a gift to one spouse.
Put it in writing when the money changes hands. A short letter or deed saying whether the money is a gift to your child alone, a gift to the couple, or a loan can be powerful evidence later.
Gift or loan? If parents expect to be repaid, document it properly as a loan.
The court must explain its decision. Inadequate reasons for a key finding can be a ground of appeal. Get advice promptly, because strict time limits apply.
If you are separating, or your family plans to give or lend money to a child, see our family law page.
How Surge Legal can help
Our family law team advises on property settlement, gifts and loans from family, and financial agreements. We can also help families document a gift or loan before the money is transferred.
Call (02) 8551 7851 or email info@surgelegal.com.au. New clients can book a free initial consultation, by appointment, with one of our lawyers. You can also book online.
Case: Massen & Massen [2026] FedCFamC1A 200 (Full Court, Federal Circuit and Family Court of Australia (Division 1), 6 November 2026) This article is a general summary of the decision cited above for information purposes only. It does not constitute legal advice. Every case turns on its own facts. Please contact Surge Legal to discuss your individual circumstances.
