A property order made by a court can only be varied under s79A Family Law Act 1975 (Cth)(FLA) for marriages and s90SN for de facto in contested matters and under s79(1A) FLA for marriage and s90SN(2) FLA for de facto in matters by consent.
Who can apply?
Under s79A(1) and s90SN(2) FLA “any person affected” by a s79 or s90SM can apply to vary or set aside property orders. Affected persons include:
– Any of the parties,
– A child of the marriage under s79A(1)(d) FLA or child of the de facto relationship under s90SN(1)(d) FLA,
– A person with caring responsibility for the child of marriage under s79A(1)(d) FLA or de facto relationship under s90SN(1)(d) FLA,
– Creditors under s79A(4) FLA or s90SN(4) FLA
Consent orders
Under s79(1A) FLA for marriage and s90SN(2) FLA for de factos:
– A person affected applies, and
– The parties to the proceeding consent.
In Bourke v Bourke (No 2) (1994) FLC 92-479, the court held that it sufficient to consent to vary or set the orders aside and that the parties do not need to consent to any new property orders.
The consent of the parties to set aside a property order does not exclude the court’s discretion to accept the consent application to vary a property order.
Contested matters
There are very limited circumstances where the court will set aside or vary property orders. Even if one of the limited grounds is made, the courts are reluctant to exercise their discretion to vary or set aside property orders.
Under s79A(1) FLA or s90SN(1) FLA there has to an ‘affected person’, a prescribed ground and the court decides to exercise its discretion to vary or set aside property orders. Prescribed grounds include:
– Miscarriage of justice by reason of fraud, duress, suppression of evidence, giving of false evidence and any other circumstance (s79A(1)(a) FLA or s90SN(1)(a) FLA)
– Circumstances that have arisen that make the order impracticable (s79A(1)(b) FLA or s90SN(1)(b) FLA)
– A person has defaulted in carrying out an obligation under the order and due to that default, it is just and equitable to vary or set aside the order (s79A(1)(c) FLA or s90SN (1)(c) FLA)
