When parties finalise their family law property settlement matter, they usually do so by one of two means, either an order from the Federal Circuit and Family Court of Australia, or a Financial Agreement. While there are various ways to overturn financial agreements, the vast majority of family law property settlement agreements are documented and made enforceable by way of family law orders.
As a matter of course, family law property orders are binding unless an appeal is brought asserting the Court made an error of law or a stay of the orders are sought until such an appeal is heard.
However, there does remain another avenue open to parties who are dissatisfied with orders and that is a vary/set aside application under either Section 79A or Section 90SN.
Section 79A & Section 90 SN of the Family Law Act
In order to set aside a property order made by the court, you must either:
- Have the consent of all parties to the order, or
- If that is not agreed:
a. Prove a ground under s79A (if the order relates to a married couple) or S90 SN (if the order relates to a defacto couple); and
b. Demonstrate to the Court that it should exercise its discretion to either vary that order, set it aside, or make a new order in substitution.
Varying Orders by Consent
If all parties agree that the order should be set aside, they can simply file an Application for Consent Orders with the court. Importantly, the application does not need to seek any additional or new orders, the parties do not need to consent to new orders for the consent to have effect – the old orders can simply be set aside.
Contested Matters
If parties cannot agree, in order to be successful in changing family law property orders, you must first satisfy the court that one of the prescribed grounds under s79A, or s90 SN exists. They are as follows;
Miscarriage of justice by reason of fraud, duress, suppression (evidence including failing to disclose relevant information) and giving false evidence or any other circumstances from Section 79A or Section 90SN.
There a five grounds under this subsection and they include;
- Fraud
This is defined as conscious wrongdoing or some form of deceit. This could include lying to the Court.
- Duress
Duress involves examining any pressure that was put on the person before entering into those orders (consent orders). Such pressure needs to be illegitimate. Illegitimate pressure consists of unlawful threats or amounts to unconscionable conduct.
- Suppression of evidence.
This ground is more focused on the concealment of evidence in property proceedings not provided to the Court. This usually relates to the inaccuracies regarding financial disclosure such as bank statements or other documents, evidencing the parties’ respective property and liabilities or evidence. This could also include failing to disclose a substantial asset during the exchange of financial disclosure that ultimately led to the orders being made. This is why it is very important for parties to disclose all items of property that they own during the initial negotiations.
- Giving of false evidence
This has been held to not be wilfully false, meaning that a person can unknowingly give false evidence and if that evidence is relied upon in the making of the order, the ground is established.
- Any other circumstance
This is a broad category but has usually been relied upon in circumstances where a party alleges incompetence of their advisors or orders being made in the absence of a party who did not attend court.
In relation to incompetent advisors, this is a high threshold and has been held to be a representative that was so bad to the equivalent of no representation at all or if the representation was perverse, for example, if the representation was in league with the other side.
In relation to failure to appear, as long as a party is aware of court proceedings and fails to attend, this does not mean that the order will be set aside. The circumstances need to be untoward, and beyond the control of the party. For example, a mistake by the court registry as to the notification of the court date.
Impracticable for an order to be carried out due to circumstances arising after the order was made- Section79A(1)(a)/Section 90SN(1)(a)
This is a ground that is not usually relied upon. To succeed on this ground, it is not enough that the circumstances have arisen since the order was made which make it unjust for the order to be carried out, it must be impractical which has been defined as practically impossible, unmanageable, and intractable.
Defaulting in carrying out an obligation under the order- Section 79A(1)(c) or Section 90SN(1)(c)
There are two limbs to this ground. You must first establish that the person has defaulted in carrying out an obligation under the original order. Secondly, you must establish that it is just and equitable for the order to be set aside in the circumstances that have arisen by reason of the default.
This is also a rare ground relied upon and involves an examination of what has occurred due to one of the party’s defaults.
Exceptional circumstances have occurred in relation to the care, welfare and development of a child, which would involve the applicant suffering hardship if the court does not change the order- Section 79A(1)(d) or Section 90 SN(1)(d)
The first limb of this ground is establishing that there has been a hardship to the applicant in relation to the care of the child. This is a hardship that is of such a serious nature that results in such inequity and can only be rectified by the extreme step of changing orders of the court.
The terminology of exceptional circumstances also makes it clear that the changes regarding the children must be outside the normal.
A proceeds of crime order has been made covering property of the parties- Section 79A(1)(e) or Section 90 SN(1)(e)
This is a complex and extremely rare event that is outside the scope of this article.
Exercise of discretion
Once you have established one of the above grounds, the court must then consider even if a ground has been proven, whether it should exercise its discretion to change the orders.
This is very much within the ambit of discretion of the judge on the day and involves a detailed consideration of the surrounding circumstances of the case. Unfortunately, there is no one set rule regarding the exercise of discretion, as the purpose of that discretion is to allow the court to be flexible with the varying families that come before it.
Varying property orders is a complex area of family law and legal advice is essential before embarking on a course to seek the change of orders. If a party commences proceedings attempting to vary orders and is not successful there can be cost consequences against the Applicant for wasting the court’s time.
If you have family law property orders that you wish to change, please contact our office on (02)4944 3322 to make an appointment with our accredited specialist in Family Law, Hayden Carr.
