Varying or Setting Aside Property Orders

Chapter contents

Introduction

The court’s power to set aside or vary property orders is contained in section 79A Family Law Act 1975 (Cth) (“the FLA”) (for parties who were married) and section 205ZH Family Court Act 1997 (WA) (“the FCA”) (for de facto parties).

The intention of making orders under section 79 FLA or section 205ZG FCA for property settlement is to finalise matters between the parties. Only in limited circumstances may the court exercise its discretion to reopen proceedings to set aside or vary consent orders for property matters:

where there has been a miscarriage of justice due to 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 orders were made such that it is impracticable for the orders or part of them to be carried out; or
a party has defaulted on an obligation under the orders such that it is just and equitable to vary or set aside the orders and substitute new orders for them; or
exceptional circumstances have arisen since the making of the order in relation to the care, welfare and development of a child of the marriage or de facto relationship such that the child, or the applicant caring for the child will suffer hardship if the court does not vary or set aside the orders and make new orders in substitution for them; or
a proceeds of crime order has been made covering property of the parties or against one of the parties; and

the court considers it appropriate to exercise its discretion to vary or set aside the orders and make new orders in substitution (s 79A(1) FLA and s 205ZH(1) FCA).

Where the parties consent to the variation or setting aside and the court considers it appropriate to exercise its discretion, it may do so and make a new order (s 79A(1A) FLA and s 205ZH(2) FCA).

Who can apply?

Only persons affected by a section 79 FLA or section 205ZG FCA order can apply. This includes:

The parties to the orders (s 79A(1) FLA and s 205ZH(1) FCA)

A child of the marriage or de facto relationship (s 79A(1) FLA and s 205ZH(1) FCA), if:

a. circumstances relating to the child’s care, welfare or development have arisen since the original orders

b. the circumstances are exceptional, and

c. the child would suffer hardship if the orders were not varied or set aside.

A person with caring responsibilities for a child of the marriage or de facto relationship (s 79A(1), (1AA) FLA and s 205ZH(1), (3) FCA)

This person can apply on behalf of the child and on behalf of themselves if they will suffer hardship if the orders are not set aside or varied.

A person with caring responsibilities for a child is defined as a parent with whom a child lives, or, where a parenting order has been made, a person with whom a child lives or who has parental responsibility for a child (s 79A(1AA) FLA and s 205ZH(3) FCA).

This person does not have to have been party to the original orders.

Creditors (s 79A(4) FLA and s 205ZH(7) FCA)

A creditor may be a “person affected” by the orders if they cannot recover a debt due to the orders.

Insolvent parties to the marriage (s 79A(5)-(7) FLA and s 205ZH(8)-(13) FCA)

If a party to a marriage is bankrupt and an order is made relating to vested bankruptcy property, then the bankruptcy trustee is a person affected by the orders.

If a party to a marriage is bankrupt or the subject of a personal insolvency agreement at or after the time of the orders, the trustee can apply to vary or set aside the orders.

Personal representatives (s 79A(1B)-(1C) FLA and s 205ZH(4)-(5) FCA)

If a party dies after proceedings are commenced, that party’s personal representative can apply in the party’s place. The court can make an order varying or setting aside property settlement orders if it would have made the order had the party survived and if it is still appropriate to make that order.

Other interested parties (s 79A(2) FLA and s 205ZH(6) FCA)

The court is to have regard to the interests of and to make orders protecting bona fide purchasers and other interested parties.

If the parties consent to the variation or setting aside the orders – s 79A(1A) FLA and s 205ZH(2) FCA

Where there is consent, the court has the discretion to vary the order, set it aside or make a new order.

The parties simply need to consent to a variation or setting aside of an order, not any new order being made (Bourke v Bourke (No 2) (1994) FLC ¶92-479). Consent does not have to be at the time of the application, but could be established by evidence of prior consent which remains binding on the parties (Bourke v Bourke (No 2) (1994) FLC ¶92-479, McCabe and McCabe (1995) FLC ¶92-634).

Consent need not be express. Conduct can imply consent to vary or set aside orders (Sommerville and Sommerville (2000) FLC ¶93-042; [1999] FamCA 958).

In McCabe, Bourke and Sommerville, consent orders were made and then the parties reconciled before separating again and an application was brought to vary or set aside the original orders.

Consent to vary or set aside the orders in Sommerville was implied from the parties’ conduct in reconciling and in the way they dealt with their finances, as the circumstances since the original orders were made rendered them unenforceable. The parties jointly purchased a new matrimonial home and set up a joint business using assets transferred to them under the property settlement.

Consent in McCabe was implied from the parties’ conduct in reconciling and writing to the court noting their intention not to transfer property in accordance with the consent orders and in the way they continued to conduct their financial affairs together.

Procedural issues

Where the parties consent to varying procedural or non-substantive orders, the court may not require a Form 13 Financial Statement or an Application for Consent Orders before varying them. It may be sufficient to file a Form 2 Application in a Case with a brief Affidavit in support by the client or lawyer. Confirm this with the court before filing.

If the parties seek to vary substantive property adjustment orders by consent, they will need to make full and frank financial disclosure as if it is a new matter, so the court can exercise its discretion. In these cases, it will usually be most appropriate to file an Application for Consent Orders.

Contested matters

If the parties do not consent to the variation or setting aside of the orders, the applicant must establish one of the grounds under section 79A(1) FLA or section 205ZH(1) FCA.

Ensure you take sufficient detailed instructions to advise your client about their prospects of success. Clients need to understand the risk that if their application is dismissed, they are more likely to get a cost order against them than in application for property settlement orders in the first instance. This is because a failed application is likely to be treated as wholly unsuccessful under section 114UB(3)(e) FLA or section 237(3)(e) FCA, which is a circumstance justifying a costs order.

Miscarriage of justice (s 79(1)(a) FLA or s 205ZH(1)(a) FCA)

This is a miscarriage of justice in accordance with the law (related to the integrity of the court process) (Clifton and Stuart [1990] FamCA 154 at [32]).

The miscarriage of justice must have arisen at the time that the consent orders were made or before they were made (Molier and Van Wyk [1980] FamCA 85 at [10], Pelerman and Pelerman [2000] FamCA 881 at [82]).

There are 5 grounds for miscarriage of justice:

Fraud

Fraud is intentional wrongdoing or deception. Mason J in Taylor v Taylor [1979] HCA 38 (at [12]) contrasted this ground with that of giving false evidence, which does not require wilfulness.

Duress

The equitable concept of duress is applied: Pelerman and Pelerman [2000] FamCA 881 [at 87].

Suppression of evidence

This ground relates to intentional suppression of evidence. Mason J in Taylor v Taylor [1979] HCA 38 (at [12]) contrasted this ground with that of giving false evidence, which does not require wilfulness.

This “…must go beyond the mere giving of one-sided evidence and amount to wilful concealment of matters which it was [the party’s] duty to put to the Court”: Taylor v Taylor [1977] FamCA 31 at [53].

That the concealment must be “wilful” is untested since the amendments to section79A(1)(a)FLA by the Family Law Amendment Act (2000) inserting the words “failure to disclose relevant information”. It may be that a failure to disclose need not be deliberate if it results in a miscarriage of justice. This could be because the court made substantially different orders than might have been made had that information been disclosed (see for example, Barker & Barker [2007] FamCA 13 at [123], citing Livesey v Jenkins [1984] UKHL 3 at 16) or perhaps because a party consented to the orders based on misleading or inadequate information (see Pelerman and Pelerman [2000] FamCA 881 at [58] citing Suiker and Suiker [1993] FamCA 141 at [20]).

In Pelerman, the court held that a miscarriage of justice arose because disclosure was incomplete, so consent to the orders was not “free and informed”. The question of whether the court would have made a different order had disclosure been full and frank was not a relevant consideration in determining whether there was a miscarriage of justice. Rather, it was relevant to the next issue, whether the court should exercise its discretion to vary or set aside the orders.

Giving of false evidence

Evidence does not need to be intentionally false under this ground: Taylor v Taylor [1979] HCA 38 (per Mason J at [12], Aickin J, Gibbs and Stephen JJ in agreement).

Any other circumstance

The most common examples of circumstances relied on under this ground are incompetent advisors and hearings in the absence of parties.

Incompetence of counsel does not of itself amount to a miscarriage of justice. Representation must have been so poor as to be the equivalent of having had no representation or “perverse”, “for example if the representative was in league with the other side” (Clifton and Stuart [1990] FamCA 154 at [23]).

In Clifton , the wife applied to set aside section 79 orders on the basis of a miscarriage of justice, being unprofessional conduct and neglect in handling her case by her lawyer at the time of and before the property hearing. The lawyer was found guilty by the Barristers’ Board of WA of unprofessional conduct and neglect. The Full Court dismissed the wife’s appeal, holding that the incompetence of legal professional unless so bad as to be the equivalent of no representation at all, does not of itself affect the judicial process or fairness of the trial even though the result may be unjust to the affected party (at [33]).

An order made in the absence of a party does not necessarily amount to a miscarriage of justice. A party would have to demonstrate that they would have presented evidence at the hearing that would have resulted in a different outcome. A miscarriage of justice may occur due to circumstances beyond the control of the party who failed to attend, such as a mistake by a lawyer or the court registry.

Impracticable for the order to be carried out due to circumstances arisen after the order was made (s 79A(1)(b)) FLA and s 205ZH(1)(b) FCA)

This ground has been compared to the contractual doctrine of frustration, in which an unforeseen intervening event or circumstance renders it impossible to carry out a term in a contract, so a term is implied dissolving the contract (La Rocca and La Rocca [1991] FamCA 97 per Kay J, quoted by the Full Court in Cawthorn v Cawthorn [1998] FamCA 37). The Full Court in Cawthorn noted that while it may be useful to rely on authorities about frustration, the court must focus on interpreting and administering section 79A(1)(b) FLA (or section 205ZH(1)(b) FCA).

In Rohde and Rohde [1984] FamCA 41 at [53], Gee J noted that the word “impracticable” is different from “impossible”:

This is more than circumstances arising which render it “unjust” to carry out the order or part of it.
The definition of “impracticable” from the Shorter Oxford Dictionary is “‘not practicable’, ‘that cannot be carried out or done’; ‘practicably impossible’; ‘unmanageable’; ‘intractable’”.

The Full Court held in Cawthorn that the default by a party cannot be relied on by that party to argue it is now impracticable to carry out that order (unless the default was due to circumstances beyond that party’s control).

Default in carrying out an obligation (s 79A(1)(c) FLA or s 205ZH(1)(c) FCA)

The applicant must prove:

A person has defaulted in carrying out an obligation in the original order; and
It is just and equitable for the order to be varied or set aside and another order made due to circumstances arising because of the default.

The applicant must prove causation between the two limbs (Rohde at [66], cited in Monticone and Monticone [1989] FamCA 92 at [24], cited in Blackwell & Scott [2017] FamCAFC 77 at [76]). That is, having established that a party defaulted, it must be assessed whether in the circumstances arising because of the default it is just and equitable for the order to be varied or set aside and another order made (see for example Blackwell, Rohde, Monticone).

Generally, the applicant’s own default will not establish this ground, unless they can persuade the court it is just and equitable (see Cawthorn and Monticone).

Exceptional circumstances relating to care, welfare and development of a child (s 79A(1)(d) FLA or s 205ZH(1)(d) FCA)

The applicant must prove:

Exceptional circumstances relating to the care, welfare and development of a child of the marriage or de facto relationship; and
Either the child or the applicant will suffer hardship if the orders are not varied or set aside.

The wording of section 79A(1)(d) indicates that these circumstances arising after the order was made must cause the hardship, not the terms of the order itself.

The Full Court determined that “exceptional circumstances” are beyond “the normal vicissitudes of life”. A change in the child’s residence after the making of the original orders would not usually establish exceptional circumstances.

In Simpson and Hamlin [1984] FamCA 62, the parties reached consent orders for property settlement. The children had remained with the husband since separation. Shortly after reaching the consent orders, the husband asked the wife to look after the children temporarily due to financial difficulties. The children remained with the wife. The wife applied for maintenance and under section 79A FLA to set aside the consent orders and for fresh orders. The judge at first instance held the circumstances were exceptional and that the wife would suffer hardship if the orders were not set aside. Allowing the husband’s appeal, the Full Court held:

A change in residence was not of itself exceptional, but it was open to the trial judge to find that the circumstances surrounding the change were exceptional (at [26]-[28].
There was no basis on which the trial judge could find that the consent orders were reached on the assumption that the husband would care for the children in the future ([at 30]).
Litigation must be brought to an end. The court must consider in the exercise of its discretion whether the hardship is so serious and results in such inequity that it can only be rectified by setting aside or varying an order (at [36]). The trial judge was mistaken in not considering whether any imbalance could be corrected in another way, such as by making maintenance orders (at [37]).

Exercise of the discretion

The Full Court considered the exercise of discretion under section 79A FLA in Prowse and Prowse [1994] FamCA 91, confirming that the applicant does not have a “prima facie entitlement” to the exercise of the discretion, having established a miscarriage of justice. The applicant must also demonstrate it is appropriate to exercise the discretion.

In Prowse, the wife applied for an extension of time to apply for a review of consent orders made by a Registrar or alternatively to vary or set aside the consent orders, arguing that she received less under the consent orders than she would have had the matter gone to hearing. She submitted that she was not aware of her rights and that there was insufficient material before the Registrar. The trial judge dismissed her application, and the Full Court upheld this decision on appeal. The trial judge noted that the wife might have received more under the orders if section 79(4) factors had been considered, and the Full Court considered that it was open to the trial judge to conclude that such a “miscarriage of justice” had occurred but not exercise the discretion to vary or set aside the orders. The trial judge found that the wife wanted a “quick end” to the marriage, that she received what she asked for and that she would have known she was receiving less than what she would get if the court determined the matter. The wife did not argue that she had received incompetent advice. The Full Court held it was open to the trial judge to take into account these matters, as well as the wife’s substantial delay in bringing her application (21 months) and the prejudice to the husband if the extension of time was granted (noting he had reorganised his financial affairs since the orders were made).

The court will consider the difference between variation and setting aside the orders. It is the court’s decision as part of the exercise of its discretion whether to vary or set aside the orders and this depends on the extent of intervention required (Parker and Parker [1983] FamCA 54 at [21]-[26], Simpson and Hamlin at [39] and Pendleton & Pendelton [2017] FamCAFC 108 at [43] and [54]).

Generally, if the variation is significant enough and especially if it involves the parties’ substantive rights, the court will set aside the orders and make new orders. This requires the usual process in making section 79 FLA or section 205ZG FCA orders to be followed, including leading new evidence as to the parties’ financial circumstances. A variation avoids this process.

A party applying for even a minor variation runs the risk that the court will consider setting aside the orders is more appropriate and that a new section 79 FLA or section 205ZG FCA determination may result.

Reviewed: 20 August 2026

Varying or Setting Aside Property Orders

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