Wastage in Wilkes & Meyers: Did the Wife End Up Better Off?

The case of Wilkes & Meyers [2026] FedCFamC2F 411 is a useful case study in the practical treatment of wastage in family law property proceedings after the 2025 Family Law Act Amendments.

The case concerned a 14-year de facto relationship and a property pool of about $3.58 million. The key wastage issue was the husband’s payment of $296,340 to his own father after compensation was received for the resumption of part of a property. The husband argued that he was legally or equitably obliged to make that payment.

The Court found that the payment was material wastage. It represented about 8% of the property pool and was a liquid sum in a case where liquidity was otherwise limited. The Court found that the husband had intentionally engaged in material wastage because the payment reduced the effective value of the parties’ property by more than $296,000. The conduct was also characterised as reckless.

The Court could not add the $296,340 back into the pool as a notional asset of the husband, as this is no longer allowed under law.. Nor did it order a dollar-for-dollar reimbursement to the wife. Instead, the wastage had to be treated as one factor in the broader discretionary exercise under s 90SM.

The Court first assessed contributions at 47.5% to the wife and 52.5% to the husband. It then considered the parties’ current and future circumstances. Those factors included the husband’s company benefits, financial resources, prospective inheritance, the wife’s care responsibilities and the wastage. The final division was 55/45 in the wife’s favour.

The total movement was therefore 7.5%. The Court did not break that movement down mathematically. However, it described the wife’s future care and earning-capacity factor as warranting only a “slight adjustment”. The children were 12 and 10, and the orders left them living with the wife and spending five nights per fortnight with the husband during school terms.

A reasonable reading is that perhaps around 2.5% of the uplift can be attributed to future needs and other s 90SM factors, with the remaining 5% doing much of the work of accounting for the wastage, however, The Court did not allocate percentages to individual factors.

On the Court’s figures, the actual pool was about $3.58 million. A 55% division of that pool gave the wife about $1.968 million. If the wasted $296,340 had remained available, the pool would have been about $3.874 million. If, in that counterfactual scenario, the wife had received only the contribution-based assessment of 47.5%, she would have received about $1.840 million.

Even allowing for a likely future-needs adjustment, the conclusion remains interesting. If the wife might otherwise have received about 50% of the enlarged pool after a modest 2.5% adjustment, that would have produced about $1.937 million. The actual result of about $1.968 million is still slightly higher.

In dollar terms, the wife may have done better than if the money had simply remained in the pool and the case had been determined without a wastage finding.

The Court, however, did not say what it would have ordered if the wastage had not occurred. It is possible the wife may still have received a larger uplift because of care, financial resources, company-related advantages or other matters. It is also possible that the Court would have taken a different approach altogether.

The broader lesson is that wastage remains a discretionary exercise, not an accounting formula. A party who engages in wastage should not assume that removing money from the pool will leave them better off simply because the missing sum is not added back dollar-for-dollar.

The Court may instead respond by making a broader percentage adjustment. That appears to have happened here. Although the wasted funds could not be notionally restored, the father seems to have been worse off overall because the wastage finding helped move the wife from 47.5% to 55%. In that sense, Wilkes & Meyers is a warning that wastage may ultimately improve the other party’s final entitlement.

If you are negotiating a property settlement or concerned that money has gone missing from the pool, the team at Surge Legal can help you understand where you stand. Call us on (02) 8551 7851, contact us online or book a consultation. You can also read more about how we help on our Property Matters and Financial Agreements pages.

This article is a general summary of Wilkes & Meyers [2026] FedCFamC2F 411 for information purposes only. It does not constitute legal advice. Please contact Surge Legal to discuss your individual circumstances.