If you have ever been through family law proceedings, we know that it’s very likely not something you ever want to do again. Seeking advice from a lawyer who practices in family law is the best way to ensure that your matter is finalised in a way that minimises the likelihood that you will ever have to go back to Court.
The Federal Circuit and Family Court of Australia (‘the Court’) is very reluctant to re-open property proceedings, as one of the principles of the Family Law Act 1975 (Cth) (‘the Act’) is to achieve finality for proceedings. There are however some limited circumstances where it may be necessary to set aside property orders. These limited circumstances are set out in section 79A of the Act for parties to a marriage, and mirrored in section 90SN of the Act for parties in a de facto relationship.
Miscarriage of Justice
The Court is able to set aside final property orders if it is satisfied that there has been “a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.” A miscarriage of justice might arise if, for example, a party has failed to make full and frank disclosure, or if a party has been coerced into agreeing to the original orders.
In Waterman & Waterman [2017] FamCAFC 23 the Court set aside final orders for a “miscarriage of justice” where there was a failure by the husband to fully disclose his financial position and where the wife lacked understanding of the proposed Orders as she had inadequate literacy and did not have legal representation.
These factors highlight the importance of ensuring you receive adequate legal advice when navigating family law proceedings.
Impracticality
If “circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out” the Court may set aside the Order. This factor would apply in unforeseeable circumstances where maintaining the original orders would cause an injustice to one or more of the parties.
Default/Non-compliance
Where one party has failed to comply with their obligations under the original orders to such an extent that it becomes necessary to make another order in substitution, the court may set aside the original order. For example, if one party delays payment of a settlement sum for so long that it would change the effect of the overall settlement, the Court may make an order to rectify this issue.
Hardship to a Child
If “circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child” arise after the making of the property order, and these circumstances would cause hardship, then the court may revisit the property order to safeguard the child’s interests. However, these may be exceptional circumstances, such as the death of a parent.
Proceeds of Crime
The Court may set aside property orders if an order is made with respect to proceeds of crime which relates to a party to the marriage or property of the marriage.
Orders
The most straightforward way of amending or setting aside final property orders, if it is necessary, is where all parties to the proceedings agree to do so by consent. The Court will review Consent Orders agreed to by all parties and will make the Orders where they are considered to be ‘just and equitable’ in all of the circumstances.
Where parties are not in agreement however, the court will hear applications to amend or set aside final orders and make another order in substitution if it considers it appropriate to do so.
Conclusion
Every family law matter is different and whether or not property orders can be set aside really depends on the facts and details of each particular case, the evidence available, and the discretion of the Court. If you would like to discuss whether or not your property orders may be set aside, please contact us on (02) 9223 5299 or email us at lawyers@michaelconley.com.au.