By and -

Key decisions

  • Daily (No 2) [2023] FedCFamC1A 122
  • Vedders & Gittens [2023] FedCFamC1A 138
  • Beeston & Quint [2023] FedCFamC1F 658
  • Dalby & Jemmet (No 2) [2023] FedCFamC2F 800


Husband’s appeal against reference in order to s 90K(1) dismissed – court not required to reiterate in order which paragraph of section motivated use of power

In Daily (No 2) [2023] FedCFamC1A 122 (3 August 2023) the Full Court (Austin, Tree & Christie JJ) dismissed a husband’s appeal from an order of Berman J setting aside a financial agreement ‘pursuant to s 90K(1)(d) and/or s 90KA’ of the Family Law Act (at [6]) on the ground that the reference in the order to s 90K(1)(d) should be deleted (at [2]).

The lawyer who had prepared the agreement for the husband was the second respondent and had been found to have been negligent.

The husband contended the order setting the agreement aside should be said to be pursuant to s 90K(1)(b) not s 90K(1)(d) (at [18]). The second respondents filed a notice of contention that the reference to s 90K(1)(d) in the order should be retained.

The Full Court said (from [19]):

‘… [T]he husband seeks to challenge the … finding of … “hardship” – the objective being the removal of any justification for the financial agreement being set aside under s 90K(1)(d) … [T]he second respondent wants to argue for the validity and retention of the “hardship” finding …

[33] … [T]he reference to s 90KA … in the order was an error as that provision is not a source of statutory power …

[34] … [T]he reference to s 90K(1)(d) … was unnecessary. Neither its inclusion within, nor its omission from, the … order makes any difference to the validity of the order. …

[35] … [N]ot only was the reference to s 90K(1)(d) … within the text of the appealed order unnecessary, it was mistaken. The reasons for judgment make clear … the financial agreement was set aside because it is void for uncertainty … but … if otherwise capable of certain construction, it would have been set aside due to hardship … [to] the wife … The text of the order does not match the reasons given … and so should be corrected by the erasure of the mistaken reference to s 90K(1)(d) …That result could have been achieved by … the slip rule. An appeal was unnecessary.’

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