Daily & Daily - [2020] FamCAFC 304

FAMILY COURT OF AUSTRALIA

DAILY & DAILY

[2020] FamCAFC 304

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found that hardship within the meaning of subsection 90K(1)(d) of the Family Law Act 1975 (Cth) was established – Where the test for hardship requires a comparison of the position of the child, or the person with caring responsibility, if the agreement remains in place and their position if the agreement is set aside – Where the primary judge reaches no requisite conclusions or findings as to the position if the agreement is upheld, nor any requisite conclusions or findings as to the position if the wife’s s 79 entitlement were determined in the usual way – Where there is an error of law made by the primary judge in applying the test of hardship – Where doubt attends the utility of any rehearing given doubts about the agreement being uncertain – Where resolved the husband ought be afforded the opportunity to address that at first instance – Appeal allowed by consent and matter remitted for rehearing by the primary judge – Costs certificates granted.

Family Law Act 1975 (Cth) ss 79, 90G, 90K
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214
Frederick & Frederick (2019) FLC 93-900; [2019] FamCAFC 87
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT:

Mr Daily

RESPONDENT:

Ms Daily

FILE NUMBER:

ADC

4606

2018

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

9 December 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Aldridge & Kent JJ

HEARING DATE:

25 November 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 June 2020

LOWER COURT MNC:

[2020] FamCA 486

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Robertson SC with Ms Miller

SOLICITOR FOR THE APPELLANT:

Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC with Mr Adey

SOLICITOR FOR THE RESPONDENT:

Norman Waterhouse Lawyers

Orders

by consent it is ordered:

The appeal from the order made by the primary judge on 17 June 2020 be allowed.
The proceedings be remitted to the primary judge for rehearing.

it is further ordered:

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Daily & Daily [2020] FamCAFC 304
Case: [2020] FamCAFC 304
Decision Date: 9 December 2020

CaseChat Overview and Summary

Daily & Daily involved a dispute between the parties that was brought before the court for resolution. The appeal arose from an order made by the primary judge on 17 June 2020, which the appellant sought to overturn. The court was tasked with deciding whether the primary judge's order was appropriate and whether the proceedings should be remitted for rehearing. Additionally, the court had to consider the costs incurred by both parties in relation to the appeal and the rehearing.

The central legal issues the court had to address were whether the primary judge's order was correct and, if not, what should be done to rectify the situation. The court also had to determine the appropriate costs for both the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth). The reasoning of the court involved a detailed examination of the primary judge's decision and the circumstances surrounding the dispute. The court concluded that the appeal should be allowed and the proceedings should be remitted for rehearing.

The court's decision was to allow the appeal from the order made by the primary judge and to remit the proceedings for rehearing. Additionally, the court granted costs certificates to both parties, indicating that it would be appropriate for the Attorney-General to authorise payments for the costs incurred by the appellant and the respondent in relation to the appeal. The court also granted a joint costs certificate for the rehearing. The form of the order was subject to entry in the Court’s records.

Orders

Orders of the court

by consent it is ordered:

The appeal from the order made by the primary judge on 17 June 2020 be allowed.

The proceedings be remitted to the primary judge for rehearing.

it is further ordered:

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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