13 Feb 2020

Once And For All – Varying Or Setting Aside Final Property Orders

Leah Reid

1. Under sections 81 and 90ST Family Law Act 1975 (Cth) (‘the Act’), the Court has a duty to make orders under Part VIII and Part VIIIAB of the Act that “as far as practicable, … will finally determine the financial relationships between the parties to the [marriage / de facto relationship] and avoid further proceedings between them” (my emphasis).

2. But once the Court makes a “final determination” to alter property interests pursuant to s 79 or s 90SM,1 it still retains power to set aside or vary those orders under s 79A and 90SN of the Act.2

3. Sections 79A and 90SN are remedial sections designed to “overcome miscarriages of justice and certain other specific difficulties and should be construed liberally to effect its intended purpose”.3 Section 90SN is analogous to s 79A. The sections are interpreted in the same way and relevant authorities apply equally.

4. The application of s 79A is not limited to orders made after a contested hearing – it can also apply to orders made by consent.4

5. Section 79A is not an alternative to an appeal. If it is alleged there has been an error of law or the Court’s discretion has miscarried, the proper course is to appeal pursuant to Part X of the Act (Badawi & Badawi (2017) FLC 93-784).

6. Subsections 79A(1) and (1A) provide:

(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

1. (a) 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; or

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