08 Aug Can final property orders be varied or set aside?
With respect to property and financial matters, and pursuant to sections 81 (marriage) and 90ST (de facto) of the Family Law Act, the Court has a duty to make orders that “as far as practicable…will finally determine the financial relationships between the parties.” However, once orders have been made to finally determine a party’s property interests, the Court still has the power to set aside or vary those orders.
Sections 79A (marriage) and 90SN (de facto relationships) of the Family Law Act are remedial sections and are intended to be relied upon where a miscarriage of justice has occurred, for example, as a result of fraud, duress, the suppression of evidence, or the giving of false evidence. An application can be made under s 79A/90SN by “a person affected by an order”. This will usually be one of the parties to the proceedings, but may also include, if relevant, a creditor of a party to the proceedings, the trustee in bankruptcy or the trustee of a personal insolvency agreement.
Whether or not orders should be varied or set aside ultimately lies within the Court’s discretion. When determining an application, the Court must engage in a four-step process:
- A ground must be established e.g. fraud;
- It must be established that the asserted ground has caused a miscarriage of justice;
- The Court must be satisfied that it is appropriate in the circumstances to exercise its discretion to vary or set aside the order/s; and
- If it is determined that the Court should exercise its discretion, whether another property order should be in place of the original orders.
It is not enough to establish the existence of one or more of the grounds. The Court must be satisfied that there has been an actual miscarriage of justice as a result of one or more of the established grounds. For example, not every failure to properly disclosure information would justify a Court setting aside property orders. There would need to be some sort of injustice that has arisen as a result of the failure to disclose relevant information.
Importantly, the application of s 79A /90SN can apply to orders made by consent.
Applications to set aside or vary property orders are complex. If you are considering making an application, you should seek specialised advice from a family lawyer.