Adjusting a property settlement is not mission impossible12-June-2013 Family Law By Simone Green
We are commonly approached by people who are unhappy with orders that they have agreed to with their former spouse but now consider to be unjust.
This is particularly so in respect to property settlements. Once orders have been made, however, it is particularly difficult to have the court set them aside or vary the orders without the consent of the other party.
The law will not necessarily do anything about rectifying a bad bargain, however, if there are genuine reasons to suggest that there has been dishonesty in negotiations or one party was at a serious disadvantage (eg. suffering from mental illness), it may be possible for the Court to review the orders.
Since legal representation is optional when applying to the Family Court for consent orders adjusting property interests, the absence of legal advice by one or both parties is not a sufficient reason to claim there has been a miscarriage of justice.
There is a real danger that the unrepresented party may not understand the nature and effect of the orders being sought.
“While the Registrar of the Court must review any proposed terms of settlement prior to making the Orders, it may not be clear on the face of the application any other circumstances that may be relevant to the matter,” Ms Green explained.
“For instance, did one party fail to provide full and frank financial disclosure to the other in negotiations for settlement? The Registrar relies on the application being a true representation of the parties’ positions, as no supporting evidence is required to be filed.”
In the event that a person feels that there has been a miscarriage of justice, the next step is to file an application in the Federal Circuit Court seeking an order under s79A of the Family Law Act to have the orders set aside or varied.
There are five grounds that the court will consider prior to deciding whether to vary or set aside the orders. These are:
- the giving of false evidence
- the suppression of evidence (including failure to disclose relevant information); and
- ‘any other circumstance’.
What constitutes ‘any other circumstance’ is sufficiently wide to capture other issues that are not articulated in the legislation but may influence the outcome of the orders. It is up to the court to decide if these circumstances would amount to a “miscarriage of justice” if the orders are not set aside or varied.
If the Court decides there has been a miscarriage of justice, it may then decide that the orders should be set aside and the applicant may proceed with a further application to the Court for new orders adjusting the property interests.
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