Case Summary
Daeira & Diamanda [2026] FedCFamC1A 98
Keywords
In Brief
Leave to appeal was refused: although the primary judge erred in treating s 90AF as a free-ranging power without first identifying a proprietary interest, the error was not material because a conceded tracing claim supported the injunctions under s 114, and no substantial injustice resulted.
In the Judge's Words
Section 90AF only provides for orders in respect of the "property" of a party to the marriage. In this case the reliance upon s 90AF was not open to the wife on the basis that the provision provided a general power to alter property rights of third parties.
Riethmuller J at [53]
Summary
In substantive parenting and property proceedings, the wife alleged that the husband had divested funds from the sale of his business through trust structures he controlled, routing money to his siblings, who in turn paid sums to the appellants, the husband's mother and step-father. After disclosure revealed transfers totalling some $418,680 to the appellants, the wife obtained ex parte orders in chambers on 11 September 2025 restraining them and requiring them to pay the funds into her solicitor's trust account. The appellants had not been joined as parties and were served only with the orders, not the supporting material. They challenged the orders, which were continued (in a reduced sum of around $358,680) on 13 October 2025, the primary judge relying on Pt VIIIAA and s 90AF of the Family Law Act 1975 (Cth) as a broad discretionary power.
Riethmuller J held that the primary judge erred in treating s 90AF as conferring a free-ranging power to alter the property rights of third parties. The first step under s 90AF is to identify relevant "property" of "a party to the marriage", and where, as here, it is disputed whether money held by a non-party is such property, the moving party must identify a cause of action or statutory claim establishing that proprietary interest. The Court also set out, with evident disapproval of how the application had been run, the procedural requirements for ex parte orders: the respondent should ordinarily be joined, served promptly with all filed material, given the earliest return date, and the orders should be time-limited under r 5.12 rather than leaving the burden on the affected party to appeal.
Despite the error, leave to appeal was refused. The appellants had conceded an arguable tracing claim, which (if proved) would render the money property of the parties to the marriage through the trust on Kennon v Spry reasoning, providing power to grant injunctions under s 114 to preserve the funds. The error was therefore not material, and the interlocutory orders worked no substantial injustice, especially as the appellants had since been joined. The Court noted the simpler course would have been a s 106B claim to set the transactions aside. No costs order was made against the appellants because the manner in which the wife's lawyers prosecuted the claim had led the primary judge into error.
Key Takeaways
Section 90AF is not a free-ranging power. The provision exists to make effective orders dividing the property of the parties to the marriage, not to create new property interests. Where it is disputed that money held by a non-party is property of a spouse, the moving party must identify a cause of action or statutory claim establishing that proprietary interest before s 90AF is engaged.
A tracing claim can supply the missing property interest. The appellants' concession that there was an arguable tracing claim meant the funds could, if the claim succeeded, be property of the parties through the trust applying Kennon v Spry. That provided power to preserve the funds under s 114, even though the primary judge's stated basis was wrong.
Ex parte orders demand strict procedural care. The Court emphasised that an applicant should ordinarily join the affected party (or undertake to do so), serve all filed documents as soon as possible, secure the earliest return date, offer an undertaking as to damages, and frame orders to operate only until a specified time or the adjourned hearing under r 5.12. Leaving the injuncted party to appeal is not an acceptable substitute for a return date.
Ex parte applications should generally be heard in open court. Save in the most urgent cases, the applicant should be heard in court rather than on the papers, and the jurisdiction exercised in open court rather than in chambers unless an exception under s 136 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) applies.
Consider s 106B before reaching for Part VIIIAA. Riethmuller J found it perplexing that the wife had not simply pursued a s 106B claim to set aside the transactions, as she had against the siblings. Cases requiring reliance on Pt VIIIAA instead of the more straightforward setting-aside power are likely to be rare.
An immaterial error will not secure leave to appeal. Applying Medlow & Medlow, leave was refused because no substantial injustice resulted: the orders were supportable on a correct basis and the procedural defect of non-joinder had since been cured. Costs were not awarded against the unsuccessful appellants because the wife's lawyers had led the primary judge into error.
Legislation Referenced
Full Decision