By Craig Nicol and Keleigh Robinson
Financial Agreement – Husband’s negligence claim against his lawyer for void s 90B agreement – Lawyer’s appeal allowed where husband was unable to establish that his lawyer’s negligence prevented him from obtaining a better outcome
In R Lawyers v Mr Daily [2025] HCA 41 (5 November 2025) the High Court (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) heard a law firm’s appeal from a decision of the Full Court of the Federal Circuit and Family Court of Australia (“FCFCOA”) in a case involving a financial agreement and the lawyer who drew it.
Mr Daily made a s 90B financial agreement before marriage in 2005 (“the BFA”). R lawyers prepared the BFA for Mr Daily. The BFA was set aside in 2019. Mr Daily made a negligence claim against R Lawyers for their advice.
Gageler CJ, Jagot and Beech-Jones JJ said (from [46]):
“… Mr Daily… [contends] … that [the FCFCOA] … did not properly consider Mr Daily’s loss. However… the … Court found that Mr Daily did not instruct R Lawyers to the effect that he wanted a financial agreement that “was effectively bullet proof against the application of s 90K(1)(d)”… and otherwise noted the absence of any evidence of the terms of a financial agreement that even amounted to a ‘reasonable attempt to avoid a potential application of s 90K(1)(d)’…
[47] … [T]he second component of Mr Daily’s claim was bound to fail by reason of Mr Daily’s failure to adduce evidence establishing the fact of loss beyond the litigation costs wasted in unsuccessfully defending the validity of the BFA… At trial Mr Daily did not adduce any evidence as to a form of financial agreement that a lawyer in 2005… would (or might) have drafted to avoid that financial agreement being set aside…
( … )
[49] In some lawyer negligence cases a court can infer … steps that might have been taken had the lawyer discharged their duty… However, the lack of any evidence about what such a financial agreement should have provided in this case… could not be so inferred…”
Gordon & Edelman JJ delivered a separate judgment but agreed with the majority.
The High Court allowed R Lawyer’s appeal, ordering that the appeal to the Full Court of the FCFCOA be dismissed and that Mr Daily pay R Lawyer’s costs of the appeal.
Children – Property – Expert evidence may be influential but the Court is never obliged to accept it – No persuasive basis to use comparable cases to inform an acceptable “range” of outcomes given the discretionary nature of s 79
In Asturias & Nasir [2025] FedCFamC1A 187 (16 October 2025) the Full Court (Austin, Harper & Brasch JJ) heard a father’s appeal from final property and parenting orders made in May 2025.
The parties had a 12 year relationship. There was one child of the relationship (“X”). The final orders provided for X to live with the parents on a week about basis ([2]). The father’s grounds of appeal included failure to provide reasons for departing from expert evidence and an unreasonable outcome based upon a “range” of comparable cases.
As to single expert evidence, the Full Court said (from [51]):
“The Court is never obliged to accept expert evidence. Unlike the expert, the primary judge had the advantage of receiving the entire body of relevant evidence, and hearing cross-examination of witnesses (Hall and Hall [1979] FamCA 73 … )… Expert opinion evidence is liable to be influential, but not if it is discounted for valid reasons (U v U [2002] HCA 36 … Albert & Plowman [2020] FamCAFC 23 … Cole & Rudzik [2024] FedCFamC1A 103 …).
[52] … [H]er Honour gave extensive reasons for departing from the expert’s view… [and] reasons for preferring equal time…”
Considering the comparable case law, the Full Court said (from [69]):
“ … [T]he idea of establishing the discretionary error of unjust or unreasonable result by reference to a standard of reasonableness manifested through a ‘range’ of financial outcomes in other cases, said to be comparable, is misplaced in litigation based upon a broad statutory discretion…
( … )
[72] Given … the indeterminate ambit of the ‘just and equitable’ requirement in s 79(2), there is no persuasive basis to support reference to other cases in determining whether it has been satisfied in a particular case.
( … )
[74] … [I]t is not possible to reconcile the concept of an acceptable ‘range’ in financial outcomes with the nature of the statutory discretion reposed in this Court by s 79 of the Act.”
The appeal was dismissed and the father was ordered to pay the mother’s costs, fixed at $25,000.
Property – Appeal from anti-suit injunction – A decision as to whether Australia is a clearly inappropriate forum is evaluative, not discretionary – Stay order set aside where evidence failed to establish that Australia was a clearly inappropriate forum
In Adams & Marchenko [2025] FedCFamC1A 197 (28 October 2025) the Full Court (Alstergren CJ, Austin & Schonell JJ) heard a husband’s appeal from final orders of Wilson J that stayed the husband’s application for property settlement on the basis that Australia was a “clearly inappropriate forum” ([2]).
Both parties were Australian residents but citizens of other countries. Their asset pool included assets in Singapore worth about $254 million and $20 million in Australia ([6]-[7]). Each party sought anti-suit injunctions against the other (the wife seeking a stay of Australian proceedings and the husband seeking a stay of Singaporean proceedings) ([9]).
Wilson J stayed the Australian proceedings. The Full Court said (from [19]):
“The primary judge had to decide this solitary question: is the Australian court a clearly inappropriate forum to hear and determine the financial cause between the parties?
( … )
[21] The answer to the question is binary: either the Australian court is or is not a clearly inappropriate forum… [If so,] the primary judge was obliged to make the stay order. Conversely, [if not] … his Honour was obliged to dismiss the stay application and let the Australian proceedings continue. There was no discretionary scope to do otherwise. The decision is evaluative – not discretionary.
( … )
[37] … [T]he stay decision was seemingly premised upon this single factor: most assets are in Singapore and no Australian orders in rem could be made in respect of the Singaporean assets – the Australian court could only make orders in personam between the parties …
( … )
[42] … [T]he decision required of his Honour was whether the Australian court was ‘a clearly inappropriate forum’ – not whether the Singaporean courts were arguably better suited. The mere balance of convenience enjoyed by a foreign jurisdiction will not justify the stay of the domestic action…
( … )
[58] … [T]he evidence fails to establish the Australian court is ‘a clearly inappropriate forum’, in which event … the stay order must be set aside, and the Australian proceedings … must be allowed to proceed.”
Divorce – No one aspect of separation is a determining factor when assessing the breakdown of the consortium vitae – Separation occurred notwithstanding ongoing sexual relations (and the wife becoming pregnant) after the husband’s asserted date of separation
In Bertrand [2025] FedCFamC2F 1121 (31 July 2025) Judge O’Shannessy heard a contested divorce application.
The husband filed an application for divorce in December 2024. He alleged that separation occurred in March 2023. The wife opposed the divorce and said that it was not a permanent separation ([4]).
Judge O’Shannessy said (from [5]):
“… [T]he matter of separation requires the breakdown of what is called the consortium vitae or the marriage relationship…
( … )
[10] It is common ground that the parties resided in separate residences for most of the time after March 2023… What is unusual is that … notwithstanding that they lived in separate residences, they had, from time to time, consensual sexual relations…
( … )
[13] I note that on or about the week before 6 March 2023 following formal mediation, the parties had reached agreement about interim… parenting arrangements…
[14] … That mediation and … agreement was … an indication of the state of the marital relationship between the parties.
[15] The circumstance that Ms Bertrand removed at least temporarily (or on Mr Bertrand’s part permanently) the special bed that was necessary for Ms Bertrand because of her medical issues… is another indication of the end of the parties’ marital relationship.
( … )
[29] [In late 2024, in a family violence application] … Ms Bertrand … made representations … to the Magistrates’ Court that warranted … [the] drastic step of an ex parte order being made against a person. That of itself… is a significant (but not itself conclusive) indicator of the breakdown, or continued breakdown, of the consortium vitae…
( … )
[38] … The fact of having a child together is ordinarily… an indication of ongoing matrimonial relationship. In this case, the conception of the further child does not indicate that unequivocally…”
His Honour concluded (at [46]):
“… I am satisfied that the ground for a divorce had been made out. Notwithstanding the joy of the sexual relationship between the parties from time to time, I am not satisfied that they have resumed cohabitation.”
