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Hogan and Hogan

Hogan and Hogan

Case [2010] FMCAfam 1255 9 September 2010

Duress

Unconscionable Conduct

Miscarriage of Justice

Adequacy of Legal Advice

Family Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOGAN & HOGAN

[2010] FMCAfam 1255

FAMILY LAW – Application to set aside property orders – undue influence – duress – unconscionable conduct – competency of legal advice – manifestly inadequate settlement.

Family Law Act 1975, s.79A

Barker v Barker (2007) 36 Fam LR 650
Bester v Perpetual Trustee Company (1970) 3 NSWLR 30
Bridgewater v Leahy (1998) 194 CLR 457
Commercial Bank ofAustralia & Amadio (1983) 151 CLR 447
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Applicant:

MS HOGAN

Respondent:

MR HOGAN

File Number:

CAC 930 of 2009

Judgment of:

Neville FM

Hearing date:

30 August 2010

Date of Last Submission:

30 August 2010

Delivered at:

Canberra

Delivered on:

9 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Millar

Solicitors for the Applicant:

Peter Tierney Lawyer, Merimbula

Counsel for the Respondent:

Ms J Godtschalk

Solicitors for the Respondent:

Kennedy & Cooke Lawyers, Merimbula

ORDERS

The Orders dated 18 March 2008 by the Local Court at Bega be set aside pursuant to section 79A of the Family Law Act1975 (Cth).
The parties attend a conciliation conference with a Registrar at 10:00am on 20^th September 2010 in Canberra.
Each party or their solicitors email to the Registrar a conciliation conference document no later than 2:00pm the day before the conference.
Each party or their solicitors file and serve updated financial material 5 days before the conciliation conference.
Within 21 days, each…

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 Hogan and Hogan

Details

AGLC: Hogan and Hogan [2010] FMCAfam 1255
Case: [2010] FMCAfam 1255
Decision Date

CaseChat Overview and Summary

In this case, the Applicant, Ms. Hogan, sought to set aside property settlement orders made by the Local Court in 2008. She contended that there had been a miscarriage of justice on the grounds of duress, undue influence, and incompetent legal advice. The Respondent, Mr. Hogan, denied any wrongdoing and argued that the orders should stand. The Federal Circuit Court, sitting as the Family Court, was tasked with determining whether Ms. Hogan had established a ground for setting aside the orders under s.79A of the Family Law Act 1975.

The Court considered relevant legal principles, including the definition of duress, the nature of unconscionable conduct, and the standard of legal advice expected in family law proceedings. It noted that duress requires illegitimate pressure that overbears a person's will, while unconscionable conduct involves taking unfair advantage of a party's special disadvantage. The Court also highlighted that incompetent legal advice, by itself, does not necessarily constitute a miscarriage of justice unless it was so deficient as to amount to no representation at all.

The Court then examined the evidence presented by both parties. Ms. Hogan provided evidence of alleged violence, threats, and harassment by Mr. Hogan during their marriage. She also argued that the legal advice she received was inadequate. Mr. Hogan denied all allegations of wrongdoing and argued that the orders were fair and just.

The Court found that, while there was insufficient evidence to establish duress, there were other circumstances that amounted to a miscarriage of justice. These included Mr. Hogan's persistent and abusive telephone calls and text messages, which the Court considered to be bordering on unconscionable conduct. Additionally, the Court found that Ms. Hogan's legal representative had provided inadequate advice, which contributed to the unfairness of the orders.

Most significantly, the Court found that the property settlement under the orders was manifestly inadequate for Ms. Hogan, considering the length of the marriage and the modest asset pool. The disproportionate division of assets was a critical factor leading to the Court's conclusion that a miscarriage of justice had occurred.

Consequently, the Court set aside the orders made by the Local Court and ordered that the matter be referred to a conciliation conference to attempt an early resolution. The parties were required to provide updated financial information and attend the conference. The Court also invited written submissions on costs within 21 days.

Orders