Setting aside Family Law Property Consent Orders in circumstances of fraud or duress

February 15, 2019

Under section 79A(1)(a) of the Family Law Act any person affected by an Order made by a Court under section 79 of the Family Law Act may apply to have that Order varied or set aside where 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.

Section 79A(1)(a) is a broad and commonly relied upon ground. The process is three-fold:

  1. Firstly, the facts must be established to prove that fraud, duress etc. occurred.
     
  2. Secondly, IF the facts are established it must then be determined whether this resulted in a miscarriage of justice. For example, there may have been fraud, but it did not result in a miscarriage of justice.
     
  3. Finally, if there was a miscarriage of justice the Court will exercise its discretion as to whether to set the Order aside and make another Order in substitution, vary the Order or leave the Order intact.

Section 79A Applications cannot be used to sidestep the basic principle that there can only be one property settlement between the parties.  The intention of the Family Law Act is that there can be only one property settlement between parties. The courts do not want to encourage parties to apply to set aside orders simply because they have changed their minds. For these reasons, it can be difficult to succeed in a s79A Application.
 
Section 79A of the Family Law Act sets out a number of other circumstances which can also give rise to grounds for Consent Orders to be set aside.
 
In considering your options, it is important to remember that the legal costs involved in pursuing an Application under section 79A could be significant and, if you are unsuccessful in your Application, you may be ordered to pay the other party’s legal fees as well.
 

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