Kovacs & Kovacs - [2022] FedCFamC2F 188

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kovacs & Kovacs [2022] FedCFamC2F 188

File number: MLC 3807 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 3 February 2022

Catchwords: FAMILY LAW – application to set aside financial agreement – section 90K(1)(d) hardship – section 90K(1)(e) unconscionability – interim spousal maintenance application – applicant unable to support herself – agreement did not provide for birth of a child – improvident agreement – agreement set aside.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 90K(1)(d), 90K(1)(e)

Cases cited:
Beroni & Corelli (2021) FLC ¶94-004

Chaffin & Chaffin [2019] FamCA 260

Corelli & Beroni [2019] FamCA 911

Daily & Daily (2020) FLC ¶93-999

Fewster & Drake (2016) FLC ¶93-745

Fox & Percy (2003) 214 CLR 118

Frederick & Frederick (2019) FLC ¶93-900

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392

Kapsalis & Kapsalis [2017] FamCA 89

Kennon & Kennon (1997) FLC ¶92-757

Maroney & Maroney [2009] FamCAFC 45

Pascot & Pascot [2011] FamCA 945

Thorne & Kennedy (2017) 263 CLR 85

Division: Division 2 Family Law

Number of paragraphs: 85

Date of hearing: 2 February 2022

Place: Melbourne

Counsel for the Applicant: Mr P Testart

Solicitor for the Applicant: JosephDavid Lawyers

Counsel for the Respondent: Mr P Indovino

Solicitor for the Respondent: MDM Lawyers
ORDERS

MLC 3807 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KOVACS

Applicant

AND:
MR KOVACS

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The financial agreement dated 12 October 2010 between the Applicant Wife, Ms Kovacs and the Respondent Husband, Mr Kovacs ('the financial agreement') be and is set aside.
2.The application for a declaration that the financial agreement is enforceable is dismissed.
3.The Applicant Wife's application for interim spousal maintenance be and is dismissed.
4.The parties are directed to provide draft directions for final hearing as soon as practical.

AND THE COURT NOTES THAT:
A.The court intends to make directions for final hearing in chambers.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r…

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 Kovacs & Kovacs

Details

AGLC: Kovacs & Kovacs [2022] FedCFamC2F 188
Case: [2022] FedCFamC2F 188
Decision Date

CaseChat Overview and Summary

Ms Kovacs applied to set aside a financial agreement dated 12 October 2010 between herself and Mr Kovacs. Ms Kovacs also sought interim spousal maintenance and a declaration that the financial agreement was not enforceable. The court was required to decide whether the financial agreement should be set aside on the grounds of hardship and unconscionability and, if so, what orders should be made in relation to spousal maintenance. The court considered the relevant legal principles and authorities, including the Family Law Act 1975 and the decision in Thorne v Kennedy. The court found that the financial agreement should be set aside on both the hardship and unconscionability grounds. The court held that the birth of the parties' child constituted a material change in circumstances that resulted in hardship for Ms Kovacs. The court also found that Ms Kovacs was in a position of special disadvantage when she entered into the financial agreement and that Mr Kovacs unconscientiously took advantage of that disadvantage. The court did not make an interim spousal maintenance order, as it was not satisfied that Mr Kovacs would be able to comply with such an order by borrowing or drawing on his resources. The court set aside the financial agreement and directed the parties to provide draft directions for final hearing.

Orders