It is a common misconception that property proceedings can easily be reopened or reviewed once final orders are made. It is essential that parties involved in property proceedings understand that Setting Aside Property Orders In Family Law can be limited in circumstances which are set out in section 79A of the Family Law Act 1975 (Cth) (referred to as ‘the Act’).
The Family Court can vary or set aside orders by consent pursuant to section 79A (1A) of the Act or in proceedings pursuant to section 79A (1) of the Act. In order for the family Court to set aside or vary orders by consent, all parties to the proceedings where the original orders were made must consent.
Parties can apply to the Family Court to seek that an order is varied or set aside in the following circumstances:
- Miscarriage of justice due to fraud, duress, the giving of false evidence, suppression of evidence (section 79A (1) (a) of the act) and any other circumstance:-
- Examples of circumstances which may amount to “any other circumstance”:-
- One party not appearing at a hearing: Williamson v Williamson (1974) 24 FLR 226 at 237;
- Procedural irregularity, i.e. if a decree nisi was made where the parties had not been separated for 12 months: In the Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90-414
- Consent Orders, i.e. if a party’s consent was not true consent: In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91-243
- A substantial increase in the value of a property before the property order was finally made: In the Marriage of Kohl (1981) 7 Fam LR 591; FLC 91-078
- Where a party has been withholding facts
- Where a proceeds of crime order has been made against a party to the marriage or a proceeds of crime order has been made regarding property of the parties to the marriage.
- Due to a change in circumstances, it is impracticable for an order to be carried out: section 79A (1) (b) of the act.
- One party has defaulted in carrying out the obligation(s) imposed by the original order(s) and in the circumstances arising as a result of that default it is just and equitable for the Court to either vary or set aside the order and make another order: section 79A (1) (c) of the act.
- Circumstances of an exceptional nature regarding the care, welfare and development of a child of the marriage, or where the Applicant will suffer hardship if the court does not vary or set aside the order and make another order: section 79A (1) (d) of the act.
Other important facts regarding section 79A applications are as follows:-
- Section 79A does not apply when the Court determines that the connection between the original order and the relief being sought is too remote: In the Marriage of B (1985) 10 Fam LR 8; FLC 91-610;
- The Family Court will not set aside or vary orders where the parties are unhappy with the orders made or to overturn a “bad deal”;
- If the court determines that they should vary or set aside the order, they are required to consider all factors under section 79 (4) of the act and section 75 (2) of the act insofar as they are applicable;
- If parties are successful in seeking that an order should be set aside, the Court determines the fresh order at the date of the hearing rather than the date at which the original orders were made: Fickling v Fickling (1996) FLC 92-664; and
- Section 79A does not apply when relief is sought in relation to property acquired following the orders being made or a new relationship.
Contact Hayley Ellison of Culshaw Miller Lawyers for more information regarding applications to set aside property orders pursuant to section 79A of the Family Law Act 1975 (Cth).