Any order for property adjustment made in either of the Federal Circuit Court of Australia or the Family Court of Australia is capable of being set aside or varied if certain criteria are met.

The grounds for which a person can make such an application are as follows:

  1. 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
  2. In the 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; or
  3. A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
  4. In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the application has caring responsibility for the child, the applicant will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
  5. A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage.

The Family Law Act 1975 (Cth) is clear insofar as, an application to set aside or vary property orders is expanded to include not only those parties to the relationship, but those who would otherwise be affected by those orders, including the Trustee in Bankruptcy if one of the parties was or became bankrupt after the orders were made, or any third-party whose interests are affected by the property orders.

It is important to note that consideration of these issues sits within the court’s discretion and upon consideration, the court may either vary the order or set aside the orders in part of in their entirely.

In a practical sense, this boils down to a four-step process. Firstly, you must establish that a ground exists and then secondly, prove that such amounts to a miscarriage of justice that would justify the Court setting aside the orders. Thirdly, you must satisfy the Court that it is appropriate to exercise their discretion to vary or set aside the order and fourthly, thereafter outline what orders should be made in place of the original orders.

In order for your claim under Section 79A(1) of the Act to succeed, the Court must be satisfied that a miscarriage of justice has resulted by virtue of one or more of the grounds listed above. It is not sufficient to merely establish the existence of one or more of the stated grounds. For example, it is not every failure to disclosure relevant information that would justify a Court setting aside property orders. It will only be in cases when the absence of disclosure has led to the Court making an order which is substantially different from the order in which it would have made if such disclosure had taken place.

Any advice or consideration as to whether property orders should be set aside or varies is inherently complex and turns on the facts of the case. If you are party to a relationship, or any other person affected by property orders, we highly recommend you seek expert advice as to your circumstances from the Chamberlains Family Law Team at familylaw@chamberlains.com.au