Setting aside orders under section 79A of the Family Law Act

Setting aside orders under section 79A of the Family Law Act

The Family Court has the power to make final determinations on the assets of parties in the breakdown of a marriage.  These powers are found under s79 of the Family Law Act 1975 (Cth) (the “Act”) and is mirrored in s90SM for parties in a de facto relationship.  When a Court makes “final orders” under these sections, it is intended that they be in full and final settlement of all property dispute in the relationship.

However, there may be circumstances when parties will approach the Court seeking to revisit final orders. Under s 79A (and s90SN for parties in a de facto relationship) of the Act, a party can apply to the Court to have final orders varied or set side.

These applications are often complex and a Court must first be satisfied that circumstances have arisen for orders to be made. One of the factors that a Court may consider is if there was a miscarriage of justice (from fraud, duress of suppression of evidence such as failure to disclose relevant information) at the time the s79 orders were made.  

The concept of “miscarriage of justice” was considered by the Court of Appeal in the case of Waterman & Waterman [2017] FamCAFC 23.  In that case, the parties obtained s79 final orders in 1998.  Subsequent to those orders being made, the parties reconciled and thereafter separated again.  At that time, the wife filed an application seeking that the Court set aside the s79 orders made in 1998.  The wife advanced the argument that circumstances surrounding the previous final orders would demonstrate a “miscarriage of justice” that warranted the setting aside of those orders.  

The Court of Appeal found in favour of the wife and determined to set aside the s79 orders on the basis that there was a miscarriage of justice at the time those orders were made.  

What constitutes a miscarriage of justice?

The Court of Appeal found that a miscarriage of justice warranting the original s79 orders to be set aside in circumstances where:

  1. The wife lacked adequate literacy and did not read the proposed orders at the time.  She was also not advised of her entitlements in relation to the division of property, including the family home;
  2. The wife was self-represented and at the time her husband’s solicitor read to her the proposed s79 orders only once;
  3. The husband failed to fully disclose his financial circumstances, including his assets, liabilities or superannuation entitlements; and
  4. The parties did not adequately discuss the husband’s financial affairs and each parties’ proper entitlements and division of the family home.

If you have previously obtained s79 orders but have any concerns and require advice get in touch with one of our family lawyers today.

Important Disclaimer: The material contained in this publication is of general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you require further information on the content of this publication, please contact our office on 9299 0112.