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At Watson & Watson our clients come first. Please be assured of our continued dedicated services to all current and new clients.

As we have done in the past, we will continue to offer alternative conferencing methods ie video conferencing, skype or telephone conferences. Reviewing of all documentation provided to us prior to any initial conference will be all inclusive of our set fee. Do not hesitate to contact Shereen Da Gloria on (02) 9221 6011 should you have any concerns.

When can a Property Settlement be reopened? Can Court Orders be set aside? Are Binding Financial Agreements Bullet Proof?

06/07/2020

Section 81 of the Family Law Act 1975 requires a Court that is determining a property claim that it make such orders, as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them.  In other words a property division should be full and final.  Any settlement reached needs to be properly documented to protect each party and to avoid future claims being made. 

If there are proceedings in the Family Court or Federal Circuit Court then proceedings will be finalised by an order by the Court either made by consent (by way of an Application for Consent Orders) or after a hearing by the Family Court or Federal Circuit Court.  If there are no Family Court or Federal Circuit Court proceedings, separated spouses can document their property division by entering into a Binding Financial Agreement under the Family Law Act 1975.  In most cases the making of Final Orders or entry into a Binding Financial Agreement will finalise the proceedings.

When Can Orders or Financial Agreements Be Set Aside

A fundamental principle in family law is that there must be full and frank financial disclosure in financial matters.  In some cases after entering into the Orders or the Financial Agreement, information becomes available that shows that there had not been full and frank financial disclosure.  Orders and Financial Agreements can be challenged and can be set aside by reason of there not being full and frank financial disclosure. 

There are also other circumstances which may come to notice after the orders are made or signing a Binding Financial Agreement that may cause a Court to set aside Orders or set aside a Binding Financial Agreement. 

Setting aside Court Orders – Section 79A of the Family Act

Section 79A provides that:

  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:
    • 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
    • circumstances have arisen since the order was made making it impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
    • 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
    • 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 and 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
    • a proceeds of crime order has been made; then

If it can be shown that some or all of these circumstances exist, the Family Court or Federal Circuit Court has discretion to and can set aside the Orders.  

Setting Aside a Financial Agreement

Section 90K of the Family Law Act 1975:

Section 90K of the Family Law Act sets out the circumstances in which the Family Court or Federal Circuit Court may make an Order setting aside a Financial Agreement or a Termination Agreement.  The grounds are substantially the same as those that apply pursuant to section 79A of the Act which is set out above.  Similar provisions exist for circumstances in which the parties may not be married but are in a de facto relationship and these provisions appear in part VIII AB of the Family Law Act. 

At Watson & Watson our experienced Family Lawyers can assist you in relation to Property/Financial settlements.  If you have any concerns or queries in relation to Court Orders or a Binding Financial Agreement being set aside either by yourself or your estranged husband/partner, please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate and timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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