Daubert & Daubert - [2024] FedCFamC2F 1065

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Daubert & Daubert [2024] FedCFamC2F 1065

File number(s): PAC 2904 of 2023

Judgment of: JUDGE MYERS

Date of judgment: 12 August 2024

Catchwords: FAMILY LAW - Property Proceedings – Threshold Hearing – Binding Financial Agreement – Binding Financial Agreement Set Aside.

Legislation:
Family Law Act 1975 (Cth) ss 71A, 79, 90B, 90C, 90G, Part VIII, Part VIIIA

Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009.

Cases cited:
Abrum & Abrum [2013] FamCA 897

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Black & Black [2006] FamCA 972

Black & Black [2008] FamCAFC 7

J & J (2006) FamCA 442

Kaimal & Kaimal [2020] FamCA 971

Stanford v Stanford [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 35

Date of last submission/s: 6 August 2024

Date of hearing: 6 August 2024

Counsel for the Applicant: Mr Steward

Solicitor for the Applicant: Michael Abboud & Co

The Respondent: Self-represented litigant
ORDERS

PAC 2904 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DAUBERT

Applicant

AND:
MR DAUBERT

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

6 AUGUST 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 31 July 2024 is hereby dismissed and the adjournment sought by the Respondent is hereby refused.
2.The Court finds and declares the Financial Agreement between the parties dated 1 September 2012 is not binding on the parties and the Agreement is set aside.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE MYERS:

This is an ex-tempore interlocutory decision in threshold proceedings between the Applicant Wife, Ms Daubert (‘the Wife’) and the Respondent Husband, Mr Daubert (‘the Husband’).
The Wife seeks an interlocutory order as contained in her Initiating Application filed on 8 June 2023 as follows:
(1)That the court set aside the financial agreement between Mr Daubert and Ms Daubert (date unknown).
The Wife also seeks final property orders.
(1)The Husband opposes the interlocutory order sought by the wife.
These proceedings relate to whether the Financial Agreement should or should not be set aside.
On 14 May 2024 the matter was listed for hearing where Judge…

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 Daubert & Daubert

Details

AGLC: Daubert & Daubert [2024] FedCFamC2F 1065
Case: [2024] FedCFamC2F 1065
Decision Date: 12 August 2024

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was a property proceeding brought by Ms Daubert seeking to set aside a binding financial agreement executed by the parties on 1 September 2012. The dispute arose from the contention that the agreement was not fairly and reasonably disclosed to Ms Daubert and thus, it was not binding on her. The case was presided over by Judge Myers, who delivered the judgment on 6 August 2024.

The legal issues before the court were whether the binding financial agreement was fairly and reasonably disclosed to Ms Daubert and whether it was binding on her. The court had to consider the evidence provided by both parties, including expert testimony on the disclosure process and the understanding of Ms Daubert at the time the agreement was executed.

In determining the matter, the court thoroughly examined the evidence provided. The judge found that there were significant deficiencies in the disclosure process and that Ms Daubert did not have a fair and reasonable understanding of the agreement's contents and implications. The court concluded that the agreement did not meet the statutory requirements for being binding and set it aside. Consequently, the court dismissed the application and refused the adjournment sought by the respondent.

The court's final orders were to dismiss the application filed by Ms Daubert on 31 July 2024 and to declare that the financial agreement dated 1 September 2012 was not binding and was set aside.

Orders

Orders of the court

PAC 2904 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DAUBERT

Applicant

AND:

MR DAUBERT

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

6 AUGUST 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 31 July 2024 is hereby dismissed and the adjournment sought by the Respondent is hereby refused.

2. The Court finds and declares the Financial Agreement between the parties dated 1 September 2012 is not binding on the parties and the Agreement is set aside.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 2904 of 2023
Judgment of:	JUDGE MYERS
Date of judgment:	12 August 2024
Catchwords:	FAMILY LAW - Property Proceedings – Threshold Hearing – Binding Financial Agreement – Binding Financial Agreement Set Aside.
Legislation:	Family Law Act 1975 (Cth) ss 71A, 79, 90B, 90C, 90G, Part VIII, Part VIIIA Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009.
Cases cited:	Abrum & Abrum [2013] FamCA 897 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Black & Black [2006] FamCA 972 Black & Black [2008] FamCAFC 7 J & J (2006) FamCA 442 Kaimal & Kaimal [2020] FamCA 971 Stanford v Stanford [2012] HCA 52
Division:	Division 2 Family Law
Number of paragraphs:	35
Date of last submission/s:	6 August 2024
Date of hearing:	6 August 2024
Counsel for the Applicant:	Mr Steward
Solicitor for the Applicant:	Michael Abboud & Co
The Respondent:	Self-represented litigant

PAC 2904 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DAUBERT Applicant
AND:	MR DAUBERT Respondent

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	6 AUGUST 2024