The Family Court has the power under section 79A (or section 90SN for de facto matters) to set aside or vary final property orders, even if the Orders were made by consent of both parties.
To be successful in an application to set aside or vary final property orders the Court must be satisfied that one of the following has occurred:
- there has been a miscarriage of justice by fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
- circumstances have arisen since the order/s were made which would make it impracticable for the order or part of it to be carried out; or
- a person has defaulted in carrying out an obligation imposed by the order; or
- circumstances of an exceptional nature have arisen relating to the care of a child of the marriage and the applicant will suffer hardship if the court does not vary the order; or
- a proceeds of crime order has been made.
If one of the above matters can be proven, the court may, at its discretion, vary the order/s or set aside the order/s and, if it considers appropriate, make another order in substitution.
Section 79A contains two requirements:
- The first, is a fact-finding exercise regarding whether an applicant can establish on the balance of probabilities that there has been a miscarriage of justice by reason of one of the matters specified in section 79A, this is often referred to as the threshold test.
- The second, which only occurs if the Court makes a finding in the applicant favour in the first requirement is a discretionary matter being that the court may at its discretion vary or set aside the original order and, if appropriate, make another order.
The decision about whether to hold a single hearing or a preliminary hearing of the first requirement will be a matter to be determined by a judge taking into consideration the circumstances of each case. Generally, the two matters would be heard together however this may not occur when there are circumstances sufficiently exceptional to justify having separate hearings, commonly this occurs where the financial circumstances of the parties are complex.
The Applicant in any application to set aside or vary final property orders bears the onus of satisfying the Court that the original orders should be set aside or varied, and that includes the onus of satisfying the Court not just that there has been a ‘miscarriage of justice’ but also that the appropriate exercise of the discretion should occur.
This is a complex area of law and advice should be obtained from a specialised family lawyer if an application to set aside final property orders is to be made. If you have any questions regarding an application to set aside final property orders or any associated family law matter please contact our firm to make an appointment with Matthew Carney an accredited specialist in family law on (02) 4944 3322.
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