A person affected by an order made under s 79 FLA may apply to have that order set aside or varied.

Section 79A of the Family Law Act 1975 (Cth) (“FLA”) is a remedial section which allows the court, in certain circumstances, to overturn an order made by the court according to s 79 FLA. Accordingly, this section applies only to orders made in relation to the property.

Pursuant to s 79A(1) FLA, a person affected by an order made under s 79 FLA may apply to have that order set aside or varied. If the court considers it appropriate, it may make another order under s 79 FLA in substitution for any orders it has set aside.

An order under s 79 includes an order dismissing an application for property orders. Before making any orders pursuant to s 79A FLA, the court must be satisfied the circumstances the subject of the application fall within one of 4 heads: s 79A(1)(a)-(d) FLA.

Each of these four heads is discussed below.

Miscarriage of Justice: s79A(1)(a)

This subsection applies only to circumstances in existence at the time when the original order was made or before the original order was made, and not to circumstances occurring afterwards.

An application under section 79A(1)(a) of the family law Act is considered in four steps:

• whether there was fraud, duress, suppression of evidence, the giving of false evidence, or any other circumstance;
• whether that amounted to a miscarriage of justice;
• whether the court in its discretion should vary our set aside the order; and
• whether it should make a nother order under s 79 of the family law Act

Miscarriage of justice in relation to consent

Property orders entered into by consent do not preclude an application under s 79A FLA if one of the four heads can be established. A miscarriage of justice (by reason of the suppression of evidence or any other circumstance) may arise in relation to consent orders where that consent is based on the misleading or inadequate information.

What is fraud?

As with the term “miscarriage of justice”, no single definition of this term has been applied by the court. The minimum threshold to satisfactorily establish fraud for s79A FLA may be stated as “conscious wrongdoing or some form of deceit.

What amounts to duress?

Like fraud, no one definition of duress has been adopted by the court. It is clear the court prefers the equitable doctrine, as opposed to the more strict common law doctrine. Accordingly, unlawful threats and unconscionable conduct may be sufficient to establish this ground. However, the categories are not closed.

Suppression of evidence

In the context of subsection (a), “suppression of evidence” means a failure to adduce available material evidence of facts to the court by the party who succeeds on the issue to which these facts are material. More than a failure to give evidence by choice or inadvertence is required.

The absence of full and frank disclosure of all financial matters to the court and the other party may support a finding of suppression of evidence.

The giving of false evidence

The applicant under this ground should aim to produce material to the court which is such that the court may find affirmatively that some of the relevant.