Many family law clients believe their former partner has lied and incorrectly think even after a property settlement has been entered into, if they can prove their former partner has lied, they can get more money or assets. Each case has to be considered on its own facts. So before you jump to conclusions that you could get more, you need to get proper legal advice.
If your former partner did not disclose relevant information or suppressed evidence prior to Court orders being made, the Court may entertain an application from you to vary or set aside those orders.
Section 79A(1)(a) of the Family Law Act provides for Orders regarding property settlement to be set aside if the Court is satisfied that “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance”.
So there is a threshold issue that you need to jump over before the Court will allow you to take a second bite of the financial cherry. You need to establish that there has been a “miscarriage of justice”. What that means will vary from case to case. Going to Court should also be a strategy of last resort.
Caroline Counsel Family Lawyers can provide you with advice regarding the evidence required to vary or set aside property orders and can tailor that advice to your specific circumstances. As there are substantial risks and uncertainties associated with seeking to have Orders set aside, we recommend that you make an appointment to see one of our lawyers from the outset so that you can make an informed decision about what to do.
It is important to understand that you cannot ask the Court to vary or set aside Orders simply because you are not happy with them. This is why it is important to get advice from us before you make any decisions about your finalising your matter. You may not be allowed that second bite so it’s important to get it right the first time.
The case of Lane v Lane [2016] shows that even if you can establish that your former partner failed to disclose relevant information, the Court may not necessarily decide to vary or set aside the Orders made. In this case, the Court found that the Husband failed to disclose information relating to his interest in a family trust and this amounted to a miscarriage of justice.
Despite this, the wife could not show that the orders would have been substantially different if the husband disclosed his interest in the family trust. The Court decided that the outcome was within the range of what the wife would have received in any event so the previous Orders were not varied or set aside.
If you need help with your family law matter, you should contact our office to make an appointment on 9320 3900 or email [email protected].
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 17 October 2017. We recommend you obtain specific advice relevant to you and your family’s situation.
Caroline Counsel Accredited Family Law Specialist and Michelle Petrovski Lawyer
