Daily & Daily (No. 2) - [2021] FamCA 337

FAMILY COURT OF AUSTRALIA
Daily & Daily (No. 2) [2021] FamCA 337

File number(s): ADC 4606 of 2018

Judgment of: BERMAN J

Date of judgment: 25 May 2021

Catchwords: FAMILY LAW – PROPERTY – Litigation funding – Where a binding financial agreement was set aside – Where the Full Court allowed the appeal and remitted the matter - Where the applicant seeks a lump sum by way of litigation funding or spousal maintenance – Where the respondent does not oppose the order but queries whether the Court has jurisdiction to make it – Whether the wife has an arguable case for substantive relief – Where the Full Court accepted there is an arguable case – Where impecuniosity to repay is not in and of itself a barrier – Orders.

Legislation: Family Law Act 1975 (Cth) ss 72, 79, 117

Cases cited: Rakete v Rakete (2012) 48 Fam LR 325

Number of paragraphs: 23

Date of hearing: 19 May 2021

Place: Adelaide

Counsel for the Applicant: Ms Pyke QC

Solicitor for the Applicant: Norman Waterhouse Lawyers

Counsel for the Respondent: Mr Jordan

Solicitor for the Respondent: Jordan & Fowler Family Lawyers
ORDERS

ADC 4606 of 2018

BETWEEN:
MS DAILY

Applicant

AND:
MR DAILY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

25 MAY 2021

THE COURT ORDERS THAT:
1.Pursuant to s 117 of the Family Law Act 1975 (Cth) the husband shall cause the sum of ONE HUNDRED AND TEN THOUSAND DOLLARS ($110,000) to be paid to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife.
2.To give effect to order 1 hereof the husband and wife do all such acts and sign all such documents as may be necessary to withdraw from the parties’ joint Westpac Investment Account number …59 the sum of ONE HUNDRED AND TEN THOUSAND DOLLARS ($110,000).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daily & Daily has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J

In contested proceedings between Ms Daily (“the wife”) and Mr Daily (“the husband”), the wife sought a declaration pursuant to s 90G(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) that a financial agreement (“the agreement”) made between the parties on 21 July 2005 is not a binding financial agreement (“BFA”) or that if it is then the agreement be set aside pursuant to the provisions of ss 90K(1)(b), 90K(1)(d) and/or 90K(1)(e) of the Act.
If the agreement is not determined to be a BFA or is set aside then the wife…

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.

Continue reading Daily & Daily (No. 2)

Details

AGLC: Daily & Daily (No. 2) [2021] FamCA 337
Case: [2021] FamCA 337
Decision Date: 25 May 2021

CaseChat Overview and Summary

In *Daily & Daily (No. 2)*, Ms Daily (the applicant wife) sought a lump sum payment by way of litigation funding or spousal maintenance from Mr Daily (the respondent husband). This application followed the setting aside of a binding financial agreement, with the Full Court having previously allowed an appeal and remitted the matter. The husband did not oppose the order sought but questioned the Court's jurisdiction to make it.

The central legal issue before Berman J was whether the Court possessed the jurisdiction to grant the wife's application for litigation funding or spousal maintenance, particularly in light of the husband's jurisdictional challenge. The Court was also required to consider whether the wife had an arguable case for substantive relief, a point the Full Court had already accepted.

Berman J reasoned that the Court had the power to make the consent orders sought by the parties. The judge noted that the Full Court had already accepted that the wife had an arguable case, and that impecuniosity on the part of the applicant to repay any litigation funding was not, in itself, a barrier to such an order. The judge concluded that the Court had the power to make the consent order as sought.

The Court ordered that the husband pay $110,000 to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife. To give effect to this, the husband and wife were directed to take all necessary steps to withdraw this sum from their joint Westpac Investment Account.

Orders

Orders of the court

ADC 4606 of 2018

BETWEEN:

MS DAILY

Applicant

AND:

MR DAILY

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

25 MAY 2021

THE COURT ORDERS THAT:

1. Pursuant to s 117 of the Family Law Act 1975 (Cth) the husband shall cause the sum of ONE HUNDRED AND TEN THOUSAND DOLLARS ($110,000) to be paid to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife.

2. To give effect to order 1 hereof the husband and wife do all such acts and sign all such documents as may be necessary to withdraw from the parties’ joint Westpac Investment Account number …59 the sum of ONE HUNDRED AND TEN THOUSAND DOLLARS ($110,000).

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The wife argues that even if she is unsuccessful there is still further entitlement by reason of the terms and conditions of the BFA being enforced.CONCLUSION I consider that I have power to make the consent order as sought by the parties. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 4606 of 2018
Judgment of:	BERMAN J
Date of judgment:	25 May 2021
Catchwords:	FAMILY LAW – PROPERTY – Litigation funding – Where a binding financial agreement was set aside – Where the Full Court allowed the appeal and remitted the matter - Where the applicant seeks a lump sum by way of litigation funding or spousal maintenance – Where the respondent does not oppose the order but queries whether the Court has jurisdiction to make it – Whether the wife has an arguable case for substantive relief – Where the Full Court accepted there is an arguable case – Where impecuniosity to repay is not in and of itself a barrier – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 72, 79, 117
Cases cited:	Rakete v Rakete (2012) 48 Fam LR 325
Number of paragraphs:	23
Date of hearing:	19 May 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Pyke QC
Solicitor for the Applicant:	Norman Waterhouse Lawyers
Counsel for the Respondent:	Mr Jordan
Solicitor for the Respondent:	Jordan & Fowler Family Lawyers

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	25 MAY 2021