When final Orders are made by the Family Law Courts pertaining to property division entitlements between parties to a de facto relationship or marriage, it is expected for such Orders to be final. However, section 79A of the Family Law Act (1975) (Cth) allows parties to set aside or discharge property orders made by the Court.
There are strict requirements to be successful in such an application. The Court must be satisfied that:
There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including a failure to disclose relevant information), the giving of false evidence or any other circumstance.
This particular requirement is commonly found where a party failed to provide full and frank financial disclosure during the negotiation or Court process. For example, if the parties entered into Final Orders on the basis that their total property pool was $500,000 and after the making of the Final Orders, a party discovers the other party had a bank account that was not disclosed that had significant funds, this would likely give rise to the Orders being set aside. It is for this reason that providing full and frank financial disclosure is imperative to ensure finality of a property division.
Since the order was made, it is now impracticable for the order to be carried out of impracticable for part of the order to be carried out.
This situation can arise most commonly where:
- There has been an Act of God. For example, a property the subject of the property division is damaged to such an extent the value is diminished prior to the parties carrying out a transfer or sale.
- There has been a significant delay between the making of the Order and the enforcement of the Orders, for example, the parties chose to delay the sale of a property to wait for the property market to improve and instead of a rise in the property market, there may have been a significant fall causing the parties debts to be more than the value of the property to be sold.
A person has defaulted in carrying out an obligation imposed on the person by the Order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the Order or set the Order aside and make another in substitution for the Order.
Although there are remedies available if a party fails to comply with an Order such as forcing compliance, this particular section allows a party to set the Orders aside or vary them completely which may be a more appropriate Order depending on the circumstances.
Since the making of the Order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, or where the Applicant has caring responsibility for the child, will suffer hardship if the Court does not vary or set aside the Order.
This may occur where a property division has been made due to the care arrangements for the children, for example, a party may have received a significant proportion of the assets due to their ongoing care of the children, however soon after the Orders were made, the children commenced living with the other parent. This could enliven the Court’s power to vary or set aside the property division in light of this significant change.
A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage.
If assets are frozen or seized due to criminal activity, this may give rise to the Court’s ability to vary or set aside orders.
The setting aside of a property Order is a technical legal argument that should only be applied for in very specific circumstances. If you are concerned there should be a change to property Orders, contact Lewis Family Lawyers today and we can assist you in advising whether such an application is appropriate for you.
