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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- Daily & Daily (No 2) [2023] FedCFamC1A 122
- Case
- [2023] FedCFamC1A 122
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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