Kapsalis and Kapsalis

[2017] FamCA 89

FAMILY COURT OF AUSTRALIA

KAPSALIS & KAPSALIS [2017] FamCA 89

FAMILY LAW – FINANCIAL AGREEMENT – Application by the wife to set aside a prenuptial agreement – Where the wife alleges there was fraudulent non-disclosure, a change in circumstances arising from the birth of the children, and unconscionable conduct on the part of the husband – Where having children of itself is not a change in circumstances where it is anticipated in the agreement – Where the signing of the agreement days prior to the wedding was found not to be unconscionable – Where the wife has failed to establish a basis for the setting aside of the agreement under s 90K – Where the wife’s application is dismissed.

Family Law Act 1975 (Cth), ss 74(3), 75(3), 90B, 90K, 90K(1)(a), 90K(1)(d), 90K(1)(e)

Kennedy & Thorne [2016] FamCAFC 189
Fewster & Drake [2016] FamCAFC 214
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Parras Holdings Pty Ltd v Commonwealth Bank of Australia [1997] FCA 1107
Saintclaire v Saintclaire (2015) FLC 93-684

APPLICANT: Ms Kapsalis

RESPONDENT: Mr Kapsalis

FILE NUMBER: SYC 4176 of 2014

DATE DELIVERED: 23 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Friedlander

SOLICITOR FOR THE APPLICANT: Hartmann & Associates

COUNSEL FOR THE RESPONDENT: Mr Stapleton

SOLICITOR FOR THE RESPONDENT: Meredith Saayman Lawyers

Orders

IT IS ORDERED

1. That the application of the wife to set aside the Financial Agreement, entered into between the parties on 4 May 2005, be dismissed.

2. That all outstanding applications be referred to a Registrar for directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kapsalis & Kapsalis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4176 of 2014

Ms Kapsalis

Applicant

And

Mr Kapsalis

Respondent

REASONS FOR JUDGMENT

1. Ms Kapsalis (“the wife”) and Mr Kapsalis (“the husband”) commenced cohabitation in late 2003.

2. On 19 March 2004, the parties signed a Cohabitation Agreement. The relevance of that agreement will be discussed later in the context of alleged non‑disclosure by the husband.

3. On 4 May 2005 they entered into an agreement titled “Prenuptial Agreement” (“the Agreement”) pursuant to s 90B of the Family Law Act 1975 (Cth) (“the Act”). The effect of the Agreement was that each party would retain the property in his or her possession at the time of the marriage.

4. They married in 2005.

5. There are two children of their marriage, B aged 7…