FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daily & Daily (No 2) [2023] FedCFamC1A 122
Appeal from: Daily & Daily [2023] FedCFamC1F 222 Appeal number: NAA 103 of 2023 File number: ADC 4606 of 2018 Judgment of: AUSTIN, TREE & christie JJ Date of judgment: 3 August 2023 Catchwords: FAMILY LAW – APPEAL – FINANCIAL AGREEMENT – Where the primary judge set aside the spouses’ financial agreement pursuant to s 90K(1) of the Family Law Act 1975 (Cth) (‘the Act’) – Where the primary judge found the second respondent legal corporation was negligent and liable in damages to the husband – Where the proceedings at first instance are currently adjourned for assessment of the damages and determination of the spouses’ property settlement – Where the husband asserts the primary judge erred by relying upon s 90K(1)(d) of the Act to set aside the financial agreement – Where the husband seeks a remedial order to confirm the financial agreement is set aside, but by deleting the reference to s 90K(1)(d) of the Act within the order – Whether the second respondent has standing to contest the appeal – Where the Court accrued jurisdiction at first instance to determine the damages claim conjunctively with the challenge to the financial agreement – Where the common law causes of action relate to the concurrent and pending matrimonial cause between the spouses – Where the text of the appealed order does not match the reasons for making it – Where the reasons of the primary judge make clear the financial agreement was set aside because it is void for uncertainty – Where the husband appeals on a false premise – Where the husband fails to demonstrate an appealable error – Where the grammatical errors within the appealed order may be corrected by resort to the slip rule – Appeal dismissed – Appealed order varied to correct error within its text – Notice of Contention dismissed – Costs – Where the appeal was pointlessly pursued – Husband to pay costs of the wife and the second respondent in relation to the appeal in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pts VIII, VIIIA, ss 4, 71A, 90G, 90K, 90KA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.17, 13.10
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49
Daily & Daily (2020) FLC 93-999; [2020] FamCAFC 304
Daily & Daily [2023] FedCFamC1A 76
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
R v Ireland (1970) 126 CLR 321; [1970] HCA 21
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Number of paragraphs: 45 Date of hearing: 3 August 2023 Place: Melbourne Counsel for the Appellant: Mr Robertson SC & Ms Boyle Solicitor…
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- AGLC
- Daily & Daily (No 2) [2023] FedCFamC1A 122
- Case
- [2023] FedCFamC1A 122
- Decision Date
CaseChat Overview and Summary
Daily & Daily (No 2) is a case in which the appellant, the husband, challenges an order made by the Family Court of Australia that set aside a financial agreement entered into with his wife. The legal dispute revolves around the enforceability of the financial agreement and the husband's subsequent claims against his former lawyers for damages arising from the agreement's nullification. The husband argues that the primary judge erred in setting aside the financial agreement and that the order should be overturned or, in the alternative, varied. The husband's former legal representatives, the second respondent, did not press their contention in the appeal but sought to make submissions. The appeal raises significant issues regarding the jurisdiction of the Family Court to set aside financial agreements and the standing of parties to challenge such orders. The court had to determine whether the husband had standing to appeal the decision and whether the primary judge correctly exercised the court's jurisdiction to set aside the financial agreement.
The primary legal issues in this case were whether the Family Court had jurisdiction to set aside the financial agreement between the spouses and whether the husband had standing to appeal the decision. The court needed to examine the statutory provisions of the Family Law Act 1975, specifically sections 90K(1)(d) and 90KA, to determine the circumstances under which a financial agreement could be set aside. Additionally, the court had to assess the husband's standing to appeal the decision, considering the Notice of Contention filed by the second respondent, which was not pressed in the appeal. The court's decision would also impact the husband's potential claims against his former lawyers for damages arising from the agreement's nullification.
The Full Court of the Family Court of Australia dismissed the appeal, concluding that the husband did not establish appealable error in the primary judge's decision to set aside the financial agreement. The court found that the husband had standing to appeal the decision, as he was directly affected by the outcome. However, the court noted that the primary judge's findings concerning the financial cause between the spouses and the husband's claims against his former lawyers would be open to challenge once final orders were made. The court varied the appealed order to correct errors within its text but otherwise upheld the primary judge's decision. The Full Court's decision underscores the importance of adhering to the statutory provisions when setting aside financial agreements and highlights the need for careful consideration of standing and jurisdiction in family law proceedings.
The final orders of the court were to dismiss the appeal but vary the appealed order to correct errors within its text. The court's decision ensures that the primary judge's findings and orders concerning the financial cause between the spouses and the husband's claims against his former lawyers remain in place, pending final determination. The dismissal of the appeal reinforces the authority of the Family Court to set aside financial agreements under the Family Law Act 1975 and underscores the importance of following statutory provisions in family law proceedings. The variation of the appealed order to correct errors ensures that the order accurately reflects the court's intentions and provides clarity for the parties involved.
The primary legal issues in this case were whether the Family Court had jurisdiction to set aside the financial agreement between the spouses and whether the husband had standing to appeal the decision. The court needed to examine the statutory provisions of the Family Law Act 1975, specifically sections 90K(1)(d) and 90KA, to determine the circumstances under which a financial agreement could be set aside. Additionally, the court had to assess the husband's standing to appeal the decision, considering the Notice of Contention filed by the second respondent, which was not pressed in the appeal. The court's decision would also impact the husband's potential claims against his former lawyers for damages arising from the agreement's nullification.
The Full Court of the Family Court of Australia dismissed the appeal, concluding that the husband did not establish appealable error in the primary judge's decision to set aside the financial agreement. The court found that the husband had standing to appeal the decision, as he was directly affected by the outcome. However, the court noted that the primary judge's findings concerning the financial cause between the spouses and the husband's claims against his former lawyers would be open to challenge once final orders were made. The court varied the appealed order to correct errors within its text but otherwise upheld the primary judge's decision. The Full Court's decision underscores the importance of adhering to the statutory provisions when setting aside financial agreements and highlights the need for careful consideration of standing and jurisdiction in family law proceedings.
The final orders of the court were to dismiss the appeal but vary the appealed order to correct errors within its text. The court's decision ensures that the primary judge's findings and orders concerning the financial cause between the spouses and the husband's claims against his former lawyers remain in place, pending final determination. The dismissal of the appeal reinforces the authority of the Family Court to set aside financial agreements under the Family Law Act 1975 and underscores the importance of following statutory provisions in family law proceedings. The variation of the appealed order to correct errors ensures that the order accurately reflects the court's intentions and provides clarity for the parties involved.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the appeal is dismissed, though the appealed order is varied to correct errors within its text.BACKGROUND The appealed order was made in these terms:1.Pursuant to s 90K(1)(d) and/or s 90KA of the Family Law Act 1975 (Cth), the financial agreement entered into between the parties dated 21 July 2005 be set aside. The order resolved only one aspect of the wider controversy between the spouses, by setting aside their financial agreement and thereby circumventing the ouster of jurisdiction, for which s 71A of the Act would otherwise provide. Consequently, jurisdiction now exists under Pt VIII of the Act for the primary judge to move ahead and determine the financial cause between the spouses by way of discretionary property settlement orders. The second respondent is the legal corporation by which the husband’s former lawyers carry on practice. The husband originally engaged the second respondent to draft a binding financial agreement between the spouses. In the event of the financial agreement between the spouses being set aside, the husband seeks damages against the second respondent, either for negligence or breach of contract, to compensate for his loss caused by the wife accruing any better financial remedy under Pt VIII of the Act than she would have received if the financial agreement were binding upon the spouses. The primary judge set out to first determine the status of the financial agreement between the spouses (at [22]–[25]). The remainder of the proceedings, concerning the wider financial cause between the spouses (at [1] and [3]) and the husband’s conditional tortious and contractual claims for damages against the second respondent (at [1], [2] and [4]), would then be addressed as necessary (at [26]–[27]). After concluding the financial agreement should be set aside, the primary judge then proceeded to make findings which will affect the determination of the financial cause between the spouses under Pt VIII of the Act (at [112]–[286]) and the common law causes of action between the husband and the second respondent (at [287]–[375] and [382]–[415]). As was observed in the interlocutory judgment (Daily & Daily [2023] FedCFamC1A 76 at [16], [20] and [23]), those findings do not support an appeal now, but will be open to challenge once orders are finally made to determine the parties’ rights in respect of those particular causes of action. This appeal concerns only the preliminary judgment under Pt VIIIA of the Act, setting aside the spouses’ financial agreement.STANDING The subject matter of the appeal raises a question about standing because the second respondent filed a Notice of Contention asserting the order setting aside the spouses’ financial agreement should nonetheless be preserved by reliance upon s 90K(1)(d) of the Act, even if the husband is able to demonstrate appealable error by the primary judge in making the appealed order. The second respondent did not press the Notice of Contention in the appeal, but still sought to make submissions.
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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