Can I set aside my final property orders?
Can I set aside my final property orders?
The power of the court to vary or set aside property orders is limited.
Sections 79A and 90SN of the Family Law Act 1975 (Cth) provide that you can only set aside final property orders in the following circumstances:
1. Both parties’ consent to varying or setting aside the orders; or
2. The court is satisfied that:
- There has been a miscarriage of justice by reason of fraud, duress, the suppression of evidence (including failure to disclose relevant information).
- Circumstances have arisen since the orders were made that make it impractical for an order or part of an order to be carried out.
- A party has defaulted in carrying out an obligation imposed by an order and as a result of the default, it is just and equitable to vary or set aside the orders.
- Exceptional circumstances have arisen since the making of the order that would lead to hardship for one of the parties if the court did not vary or set aside the orders.
- A proceeds of crime order has been made covering property of the parties.
Even if one or more of the above requirements is met, the court has the discretion as to whether to vary or set aside the orders in question.
An example of a successful application is the case of Pompidou & Pompidou [2007] FamCA 879. In this case orders were set aside under
79A(1)(a) due to duress, as the wife had signed the orders due to her fear that the husband would carry out his threat to kill her and undertake a siege of a regional city if she did not sign the orders.
Why does this matter for me?
Applications to set aside or vary property orders are complex and should not be made without the benefit of legal advice. If you are considering making an application, you should seek specialised advice from a lawyer specialising in family law.
If you would like further information about how the court approaches applications to set aside or vary orders, or you would like to discuss your options if you are dissatisfied with your orders please contact the Sage Family Lawyers team on 03 9070 9839 or info@sagefamilylawyers.com.au
