Section 79A Family Law Act: Setting Aside Orders

What Section 79A Does

Section 79A applies to property orders under section 79 for married couples. It allows variation, setting aside and, where appropriate, replacement orders. Final property orders are intended to end the financial dispute, so reopening them requires more than dissatisfaction with the bargain.

An affected person can apply. That includes either former spouse, a creditor whose recovery is impaired by the orders and a bankruptcy trustee within the statutory conditions. A trustee of a personal insolvency agreement can also qualify. The court must protect bona fide purchasers and other interested people when exercising its powers.

The Family Law Act contains the governing provisions. De facto property orders use a separate statutory route. Financial agreements have their own set-aside provisions.

Grounds for Setting Aside Property Orders

The five grounds in section 79A(1) address different defects or later events. The examples below are hypothetical.

Ground	What It Requires	Example
Miscarriage of justice	Fraud, duress, suppression of evidence including non-disclosure, false evidence or another circumstance causes a miscarriage of justice.	A spouse omits an investment account from disclosure used to reach consent orders.
Impracticability	Later circumstances make all or part of the order impracticable to carry out.	An unforeseen event destroys the particular property the order requires to be transferred.
Default	Someone defaults on an ordered obligation, and the resulting circumstances make intervention just and equitable.	A spouse fails to discharge a mortgage, undermining the ordered transfer.
Exceptional child-related circumstances	Exceptional later circumstances concerning a child’s care, welfare or development cause hardship without intervention.	A child develops care needs requiring adaptations the caring parent cannot fund under the existing arrangement.
Proceeds of crime order	Such an order covers either spouse’s property or is made against a spouse.	A confiscation order covers an asset divided by the property orders.

Within the miscarriage-of-justice ground, fraud involves deception and duress involves improper pressure. False evidence need not be deliberately false. An omission and its effect must be proved, rather than treating every missing document as a miscarriage of justice.

Establishing a ground opens the court’s discretion. It does not create an entitlement to replacement orders. The court considers whether intervention is appropriate, including the consequences for people who have acted on the settlement.

Can Consent Orders Be Overturned?

Yes, consent property orders can be set aside on the same statutory grounds as orders made after a contested hearing. A change of heart, or believing a different bargain was possible, is insufficient.

Section 79A(1A) also allows an affected person to apply with the consent of all parties to the original proceedings. This route does not require proof of one of the five contested grounds. Both former spouses agreeing is sufficient only if they were the only parties.

The court retains discretion even where everyone agrees. The parties must provide the financial information needed for that decision, and any fresh property orders must satisfy the statutory requirements. Their private agreement alone does not cancel the existing orders.

Varying Property Orders Made by Consent

Property orders cannot be changed simply because ordinary financial circumstances have moved on. They settle property rights with finality. Parenting orders have a different reconsideration regime focused on the child.

A clerical mistake or accidental slip can be corrected under rule 10.13. Correcting a transposed account number differs from changing the division of property. A proposed variation that substantially changes the parties’ rights can require setting aside the orders and making a fresh property determination.

For contested section 79A relief seeking final orders in the Federal Circuit and Family Court of Australia (FCFCOA), file an Initiating Application (Family Law). Identify the orders to be varied or set aside and the replacement relief sought.

The court’s published final-order filing fee is $455, subject to exemption eligibility. An application seeking both final and interlocutory orders attracts $610. GST does not apply to these court fees. The court’s fee schedule explains the categories.

The financial proceedings practice direction lists the accompanying financial documents. An affidavit is required for interlocutory relief, including an urgent application, but is not automatically required at filing for final orders only. Use the court’s affidavit form when required. Set out the discovery of the omission and supporting records as facts, with evidence filed under the court’s directions.

Setting Aside Orders Under the Court Rules

Rule 10.13 of the Family Law Rules 2021 remains the relevant rule number. It covers orders made in a party’s absence or obtained by fraud. It also reaches interlocutory orders, injunctions, receiver appointments, consent by the benefited party and orders that fail to reflect the court’s intention. Clerical mistakes and accidental slips are included.

A correction or an absence-based procedural application can provide a more direct route where it addresses the actual defect. Rule 5.02 allows an Application in a Proceeding for rule 10.13 relief even without a current proceeding, with an exception for final orders obtained by fraud.

For that fraud exception, rule 10.13(3) expressly requires an Initiating Application. The rules do not turn substantive dissatisfaction with final property orders into a correction application. Use section 79A where the case seeks to reopen the property settlement on its statutory grounds.

Non-Disclosure as a Ground

Non-disclosure must be connected to a miscarriage of justice and the court’s decision to reopen the orders. Identify what was omitted, who knew about it and how the omission affected informed consent or the adjudication.

In Suiker & Suiker (1993) FLC 92-436, the Full Court explained that consent based on misleading or inadequate information can affect the judicial process. Pelerman & Pelerman [2000] FamCA 881 distinguishes establishing the miscarriage from deciding whether to exercise discretion. The likely difference in the outcome is relevant to that discretionary decision.

Prepare evidence showing that full disclosure would likely have produced a materially different result. There is no universal dollar threshold. A small omission relative to the property pool can have a different effect from a substantial undisclosed investment.

Carelessness is not an automatic defence or an automatic ground. The provision expressly includes failure to disclose relevant information, while false evidence need not involve deliberate falsity. Explain the information withheld and its effect, instead of assuming that motive alone decides the application. Legal Aid WA’s property handbook discusses those distinctions and the authorities.

Proving Non-Disclosure From Bank Records

Bank records can connect an omitted asset to the disclosure used for the original orders. Compare the statements with the filed financial statement and the documents disclosed at settlement. The financial disclosure duty explains what that original account of the finances needed to contain.

For each discrepancy, record the account holder and account identifier, the relevant balance or transaction and its source page. Separate ownership of an asset from a transfer between accounts already included in the pool. Counting both the sending balance and the same money at its destination overstates the omission.

Once proceedings are on foot, a bank subpoena can obtain records for a previously unknown account. Request identifiable account-opening records and statements for the relevant period. A transfer description or account identifier can help define the request. The bank produces records to the court under the subpoena, followed by the applicable inspection process.

Permission is required for a production subpoena for a final hearing. The Rules also regulate service, conduct money and objections. The family court subpoena process explains the steps for obtaining bank records.

Consider a hypothetical share account discovered eighteen months after consent orders. A ledger links transfers from a disclosed bank account to the share account. The share statements establish the holding and balance when the orders were made. Compare that value with the original asset schedule and explain the adjustment full disclosure would have supported. Tracing concealed assets helps identify the records needed for that comparison.

FinTrace saves lawyers and forensic accountants hours of statement review by consolidating large PDF bundles into a searchable Excel ledger and clear findings report. It follows transfers across related accounts and flags suspicious transactions or possible undisclosed income. Each finding cites the source PDF filename and page, putting the evidence behind the omission and its value at hand.

Delay and What Happens If Orders Are Set Aside

Section 79A sets no fixed filing deadline. Delay still affects the court’s discretion, particularly where the applicant knew the facts and another person has relied on the orders.

Legal Aid WA discusses Prowse & Prowse [1994] FamCA 91, where the Full Court upheld refusal to disturb consent orders. The wife’s delay of 21 months and prejudice from the husband reorganising his finances were among the matters considered. Delay was part of the assessment, not a standalone statutory expiry period.

Record when your client discovered the omission, what they did next and why any further delay occurred. Preserve the original disclosure and the newly discovered statements so the court can compare the two.

If orders are set aside, the court can make fresh section 79 property orders on current evidence. It determines the property interests and applies the statutory property framework again, including whether the outcome is just and equitable. A finding of non-disclosure does not automatically award the applicant the entire omitted asset.

The parties can resolve replacement orders by consent within that framework. Prepare both the evidence supporting reopening and the current financial evidence needed for the replacement outcome you seek.