Tsarouhi and Tsarouhi - [2009] FMCAfam 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TSAROUHI & TSAROUHI

[2009] FMCAfam 126

FAMILY LAW – Application to set aside binding financial agreement – whether agreement the result of duress or unconscionability – whether agreement fails to comply with s.90G of the Family Law Act 1975.

Family Law Act 1975, ss.90G, 90K, 90KA
Evidence Act 1955, s.140

Bloomingdale Holdings Pty Ltd and Anor v 63 Buckley St Pty Ltd [2008] VSC 168
Flower v Sadler (1882) 10 QBD 572 at 576
Scolio Pty Ltd v Cote (1992) 6 WAR 475
Windhill Local Board of Health v Vint 45 Ch D 351 at 363
Public Service Credit Union v Campion (1984) 75 FLR 131
Mutual Finance Ltd v John Whetton & Sons Ltd [1937] 2 KB 389 Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 to 462
Australia and New Zealand Banking Group v Karam and Others (2005) 64 NSWLR 149 at 162
Kostres & Kostres (2008) 40 Fam LR 228
Williams v Bayley [1866] LR 1 HL 200
Sterling Winthrop Pty Ltd v Boots Company (Australia) Pty Ltd (1995) 33 IPR 266; (1996) 18 ATPR 41-452
B & B (2008) 216 FLR 422
Westpac Banking Corporation v Tanzone Pty Ltd (2000) BPR 17, 521

Applicant:

MS TSAROUHI

Respondent:

MR TSAROUHI

File Number:

MLC 260 of 2008

Judgment of:

Riley FM

Hearing dates:

17, 19 & 21 November 2008

Date of Last Submission:

28 January 2009

Delivered at:

Melbourne

Delivered on:

27 February 2009

REPRESENTATION

Counsel for the Applicant:

Robert Weir

Solicitors for the Applicant:

John D Snodgrass & Associates

Counsel for the Respondent:

John Werner

Solicitors for the Respondent:

Bogunovic Lawyers

ORDERS

The agreement between the parties dated 4 October 2006 be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Tsarouhi & Tsarouhi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 260 of 2008

MS TSAROUHI

Applicant

And

MR TSAROUHI

Respondent

REASONS FOR JUDGMENT

Background

This is the wife’s application to set aside an agreement dated

4 October 2006
which provided for a distribution of the property of the husband and the wife (“the agreement”). The wife argued that:
a)the agreement should be set aside on the grounds of duress or unconscionability under s.90K of the Family Law Act 1975 (“the Act”); or, in the alternative,
b)the agreement is not binding because it does not meet the requirements of s.90G of the Act.
The parties married in February 1983 and separated on 15 April 2006. The agreement was made six months after separation, on 4 October 2006. There are three children of the marriage, namely [X], who is now 22 years old, [Y], who is now 17 years old, and [Z], who is now 10 years old. [X] and [Y] live with their father. [Z] lives with his mother.
It was common ground that the wife had repeatedly taken money from the parties’ joint…

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.

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Details

Case: [2009] FMCAfam 126
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case before the Federal Court involved a dispute between the parties, identified as Tsarouhi and Tsarouhi, over an agreement dated 4 October 2006. The dispute centered around the validity of the agreement and the rights and obligations of the parties under it. The Federal Court was tasked with determining the enforceability of the agreement and whether it should be set aside.

The legal issues before the court included the interpretation of the terms of the agreement, the circumstances under which it was entered into, and whether there were any grounds for the agreement to be considered unconscionable or otherwise unenforceable. The court had to consider whether the agreement was a genuine consensus between the parties or if there were factors that rendered it invalid.

The court, after considering the evidence and arguments presented, concluded that there were significant issues with the agreement that warranted its setting aside. The court found that the agreement did not accurately reflect the intentions of the parties and that there were elements of unconscionability. The court was satisfied that the agreement should not be enforced as it stood, and therefore, ordered that the agreement be set aside.

As a result, the court made an order that the agreement between the parties dated 4 October 2006 be set aside. This decision effectively nullified the agreement and relieved the parties from the obligations they had under it.

Orders

Orders of the court

The agreement between the parties dated 4 October 2006 be set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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