Orders have issued what happens when it all goes wrong? QLS Essentials: Drafting Family Law Orders

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1 Orders have issued what happens when it all goes wrong? QLS Essentials: Drafting Family Law Orders 12 October 2016 Kirstie Colls Senior Associate Accredited Family Law Specialist Barry.Nilsson. Lawyers With thanks to: Caitlin Elliott Solicitor Barry.Nilsson. Lawyers ORDERS HAVE ISSUED WHAT HAPPENS WHEN IT ALL GOES WRONG? CORRECTING ERRORS IN ORDERS Slip Rule From time to time, you (or the solicitor on the other side, or a Registrar or Judge) may make an error when drafting Orders. If you notice that Orders issuing from the Court contain an error, the error may be able to be corrected by amendment under the slip rule. The Law When in the Family Court, the rule by which Orders may be corrected by amendment in this way is found in rule of the Family Law Rules 2004 (Cth), which provides: Varying or setting aside orders (1) The court may at any time vary or set aside an order, if: (a) (c) (d) (e) (f) (g) (h) it was made in the absence of a party; or it was obtained by fraud; or it is interlocutory; or it is an injunction or for the appointment of a receiver; or it does not reflect the intention of the court; or the party in whose favour it was made consents; or there is a clerical mistake in the order; or there is an error arising in the order from an accidental slip or omission. Page 1

2 (2) Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order. The corresponding rule in the Federal Circuit Court Rules 2001 (Cth) is found at rule 16.05, which provides: Setting aside (1) The Court may vary or set aside its judgment or order before it has been entered. (2) The Court may vary or set aside its judgment or order after it has been entered if: (a) (c) (d) (e) (f) the order is made in the absence of a party; or the order is obtained by fraud; or the order is interlocutory; or the order is an injunction or for the appointment of a receiver; or the order does not reflect the intention of the Court; or the party in whose favour the order is made consents. (3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order. Despite the above Rules, the Court has an inherent power to amend or correct orders to so as to ensure the order expresses the intention of the Court. While obvious errors are usually corrected by amendment with the consent from both parties, the Court does not strictly require the consent of either party. The error must arise from an accidental slip or omission, as opposed to a jointly held incorrect belief 1. Examples of where you might utilise the slip rule : Typographical/clerical errors; Errors in the spelling of a party s name (or, for example, the omission of a middle name); Errors in the legal or common description of real property; Deleting an order which was not made at the hearing; Amending a wrong figure or date in the order where the parties and the Judge both used the same wrong figure or date but the correct figure had been available; Inserting an order made by the Judge but omitted from the written order. Where you cannot amend an Order using the slip rule: Where there is doubt as to whether the omission was accidental 2 ; Where amending the order would involve the exercise of discretion (eg. altering a costs order) 3 ; Where a party seeks to add a completely new order, or interpret an ambiguous order (eg. that a cash payment be made with interest when no interest had previously been ordered to be paid, or in respect of the interest to be paid) 4 ; 1 Bailey and Bailey (1990) FLC Johnson v Johnson (No 4) 2000 FLC Johnson v Johnson (No 4) 2000 FLC93-051, Vance & Vance (2011) FLC Gludau & Gludau (No 2) (2013) FLC Page 2

3 Where the parties contemplated that an event would occur, and the event didn t occur (eg. the amount of money redeemed from an investment) 5 ; Where the asserted error is substantive 6. If the error cannot be amended using the slip rule, an application may have to be made to the Court to seek new orders, or to construe the meaning of the Order. There is a specific power under section 80(1)(k) of the Family Law Act 1975 (Cth) which allows the Court to make any other order which it thinks it is necessary to make to do justice, and under r1.09 of the Family Law Rules 2004 (Cth) to make such orders as it considers necessary if satisfied that a difficulty arises, or doubt exists, in relation to a matter of practice or procedure. Ethical obligations Quite apart from a general desire for Court Orders affecting your client to be correct and free from error, solicitors also have an ethical obligation to other solicitors (and other persons) should they notice an error. The Australian Solicitors Conduct Rules 2012 at rule 30.1 provides that a solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact. This ethical obligation, consistent with other conduct rules, binds solicitors to act in the paramount interests of the Court and administration of justice. This means that if, for example, an Order issued from the Court which contained an error to the benefit of your client, you have a duty to the Court not to take unfair advantage of the error. What to do when you find an error Should you notice an error in Orders, a suggested course of action is as follows: 1. Notify the client of the error in the Orders, and advise them as to the possible options to take, including seeking amendment pursuant to the slip rule. Confirm the client s instructions; 2. Notify the other side of the error; 3. Draft joint correspondence to the Court which contains: a. Reference to the Orders made; b. Identification of the error in the Orders; and c. Attaches a soft, clean (ie. unsigned) copy of the Orders with the error corrected (showing tracked changes) which the Court may use in amending the Orders; 4. Forward the draft joint correspondence to the other side for signing; then 5. Send the co-signed joint correspondence to the Court. Where you anticipate the correction of an error might be an issue of contention, you might consider obtaining a transcript of the hearing, to support your position. 5 Bailey and Bailey (1990) FLC Gludau & Gludau (No 2) (2013) FLC Page 3

4 RIGHT OF APPEAL What is an Appeal? A party may appeal a decision made by a Family Court Judge or by a Federal Circuit Court Judge. There are two categories of appeal under the Family Law Act, being appeals to a single judge of the Family Court, or those to the Full Court of the Family Court. In order for an appeal to succeed, the appellant must satisfy the Court that a judicial officer made an error such that the decision should be set aside. Circumstances in which a party may appeal a decision are limited. The Court must be persuaded that the judicial officer: Applied a wrong principle of law; Made a finding of fact/s on an important issue which could not be supported by evidence (eg. that a certain event didn t occur, that something was said or not said, or in respect of the value of an item); or Exercised his or her discretion to arrive at a decision which was clearly wrong. It is not enough that a different judicial officer might have formed a different view, or decided the case differently. Procedure Chapter 22 of the Family Law Rules 2004 sets out the procedure for appeals. Commencing the appeal Within 28 days of the Orders being made, the appellant must file a Notice of Appeal. 7 A Notice of Appeal must include: a. Notification as to whether all or part of the orders are being appealed; b. The grounds upon which it is claimed that the decision is wrong; c. The Orders sought in substitution. Once a Notice of Appeal is filed, the Chief Justice of the Family Court determines whether the appeal will be heard by a single Judge or the Full Court (comprising three Judges). The filing of a Notice of Appeal does not affect the operational status of the orders being appealed. The parties must still comply with the original orders, even after a Notice of Appeal is filed. An Application in a Case must be filed after a Notice of Appeal is lodged seeking a stay on the original orders made, if it is sought to delay the operation of the original orders, pending the outcome of the appeal process. Service Within 14 days of filing the Notice of Appeal, the appellant must serve a copy on the respondent and all other parties to the proceeding. 8 Cross Appeal 7 Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Page 4

5 Within 14 days of being served with a Notice of Appeal, or within 28 days of the Order being appealed, whichever is the later, the respondent may file a cross-appeal. 9 Single Judge or Full Court? The process then differs for appeals to a single judge or to the Full Court: Appeal Appeals to a single judge Appeals to the Full Court Which appeals? Process Appeals from Courts of Summary Jurisdiction (eg. the Magistrates Court of Queensland) 1. No appeal books required unless directed by the Court (although, may well be beneficial). 2. Copies of affidavits (if any) read during the proceedings should be made available. Appeal hearing occurs Appeals from a Federal Circuit Court Judge/Family Law Magistrate 1. Once appeal filed, the Court will inform the appellant whether the Full Court or a single judge will determine the appeal (this decision cannot be appealed). 2. The appeal is listed for a procedural hearing (the appellant must attend, the respondent may attend 10 ). 3. At the procedural hearing it is determined whether an appeal book is required. If an appeal book is not required, the documents to be filed include a summary of argument and list of authorities. A hearing date is set at the procedural hearing. All appeals from a judge exercising original jurisdiction of the Family Court; An appeal against a decision of a judge not to disqualify themselves; All appeals from single judges of a Supreme Court of a State/Territory; Appeals from a Federal Circuit Court Judge, which the Chief Justice determines should be heard by the Full Court. 1. Within 28 days of filing the appeal or the date of reasons for judgment, the appellant files a draft index to the appeal book and serves a copy on the other parties to the appeal. 11 The appellant may apply for an extension of time in which to do so if necessary After the draft index to the appeal book is filed, the appeal is listed for a procedural hearing. 3. The appellant must attend the procedural hearing although the respondent may chose not to 13 ). The draft index to the appeal book is settled (that is, what documents are to be included in the appeal books) and Orders are made with respect to the production and service of the appeal books and the conduct of the appeal. A failure to lodge the appeal books in the specified time means the appeal is treated as abandoned At least 28 days before the first day of appeal sitting, the appellant files with the Court and serves on the respondent and all other parties a summary of argument and list of authorities. 5. At least 7 days before the first day of the appeal sitting, the respondent files and serves a summary of argument and list of authorities. 9 Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r.22.13(2) 13 Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Page 5

6 Application in an Appeal Appeal hearing occurs Appeal hearing occurs Interlocutory applications may be made during an appeal process and are made by filing an Application in an Appeal and a supporting affidavit. You would file such an application if you were seeking orders including but not limited to: Permission to appeal out of time; Extension of time to comply with directions; Application to restore an appeal treated as abandoned by operation of the Rules; Applications to rely on further evidence 15. The application must be filed at least 14 days prior to the first day of the sittings the appeal is to be heard in (and the response 7 days prior). The application is then heard on the same day as that fixed for the appeal. Concluding an Appeal Appeals can be concluded early by: The parties reaching agreement as to consent orders 16 : Discontinuance 17 : Deemed abandonment 18 : Dismissal for want of prosecution 19 : If an appeal is successful, the Court may make a new order to the one made by the judicial officer; or remit the matters for retrial by a single judicial officer. If an appeal is unsuccessful, it will be dismissed and cost consequences may follow. Review of the Decision Of A Registrar Pursuant to a delegation of powers under section 26B and 37A of the Family Law Act, Judicial Registrars and Registrars may exercise certain judicial powers of the Family Court. The exercise of these powers is subject to review. When appearing before a Registrar, practitioners should always check whether the Registrar in fact has the power to make the Order sought. 15 Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Family Law Rules 2004 (Cth) r Page 6

7 The powers delegated to Registrars can be found in the following provisions and rules: Family Law Act 1975 Family Law Rules 2004 Federal Circuit Court Rules 2001 Judicial Registrars Registrars Section 26B Rule Rule 20.00A Section 37A Under the Act, Registrar means, in relation to the Family Court, the Principal Registrar, a Registrar, or a Deputy Registrar of the Court. Rule Rule 18.01(2) provides that a power or function expressed by these Rules to be conferred on a Registrar may also be exercised by a Judicial Registrar. No Judicial Registrars or Deputy Registrars. Deputy Registrars Rule Rule 18.01(1) provides that a power or function expressed by these Rules to be conferred on a Deputy Registrar may also be exercised by a Judicial Registrar or a Registrar. A review of the exercise of delegated judicial powers may be undertaken by the Family Court of its own motion, or it may be sought by a party to the proceedings in which a Registrar has exercised a power. 20 Review applications are hearings de novo, which means: They are conducted without reference to the merit of the original decision; and They are not constrained by the evidence and arguments put before the original decision maker. A party may apply for a review of an order of a Registrar by filing an Application in a Case (in the Family Court) or an Application for Review (in the Federal Circuit Court) within certain time frames, most of which are within 7 days and some of which are within 28 days, depending on the decision being reviewed. 21 Check the rules carefully as to which time frame applies to your situation. No affidavit in support is required. The application is listed before a Federal Circuit Court Judge or a Family Court Judge for directions, and if the matter is ready on the first return date, for hearing. 20 Family Law Act 1975 (Cth) s26c. 21 Family Law Rules 2004 (Cth) r.18.08, Federal Circuit Court Rules 2001 (Cth) r Page 7

8 SETTING ASIDE ORDERS FOR PROPERTY SETTLEMENT Sections 79A & 90SN Family Law Act Section 79A (section 90SN for de facto couples) allows the Court in its discretion to set aside or vary an order made under section 79 (that is, an order for the alteration of property interests), and in certain circumstances, to substitute a different order. In complete form, section 79A Family Law Act is: 79A Setting aside of orders altering property interests (1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that: (a) (c) (d) (e) 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; or in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage; the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. (1A) (1AA) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. For the purposes of paragraph (1)(d), a person has caring responsibility for a child if: (a) the person is a parent of the child with whom the child lives; or (1B) (1C) a parenting order provides that: (i) the child is to live with the person; or (ii) the person has parental responsibility for the child. An order varied or made under subsection (1) or (1A) may, after the death of a party to the marriage in which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies: Page 8

9 (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; if the court is of the opinion: (i) that it would have exercised its powers under subsection (1) or (1A) in relation to the order if the deceased party had not died; and (ii) that it is still appropriate to exercise its powers under subsection (1) or (1A) in relation to the order; the court may vary the order, set the order aside, or set the order aside and make another order under section 79 in substitution for the order so set aside; and (c) an order varied or made by the court pursuant to paragraph may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. (2) In the exercise of its powers under subsection (1), (1A) or (1C), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. (3) In this section, a reference to an order made by a court under section 79 includes a reference to an order made by a court under section 86 of the repealed Act. (4) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 79 was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made. (5) For the purposes of this section, if: (a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and either of the following subparagraphs apply to a party to the marriage: (i) when the order was made, the party was a bankrupt; (ii) after the order was made, the party became a bankrupt; the bankruptcy trustee is taken to be a person whose interests are affected by the order. (6) For the purposes of this section, if: (a) a party to a marriage is a bankrupt; and an order is made by a court under section 79 in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party; the bankruptcy trustee is taken to be a person whose interests are affected by the order. (7) For the purposes of this section, if: (a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and either of the following subparagraphs apply to a party to the marriage: (i) when the order was made, the party was a debtor subject to a personal insolvency agreement; (ii) after the order was made, the party became a debtor subject to a personal insolvency agreement; the trustee of the agreement is taken to be a person whose interests are affected by the order. Page 9

10 On closer analysis of the grounds set out in s79a(1)(a) we can see that the Court must be satisfied that there has been a miscarriage of justice by reason of various grounds which occurred at the time the order was made sufficient to warrant the exercise of the Court s discretion to vary the Order. Sections 79A(1)-(e) involve grounds, the circumstances in respect of which, have arisen since the making of the Order. Looking at those grounds comprising s79a(1)(a) more closely: Section 79A(1)(a)//90SN(1)(a) Fraud in the context of 79A applications, is limited to miscarriage of justice according to the law, in that it has been held to exclude miscarriages or justice for reasons unrelated to the judicial process 22. Fraud means conscious wrong doing or some form of deceit 23 and may include a deliberate misstatement of important information which was relied upon by the other party. Fraud is not consistently defined in the Act, but the common law definition is established when it is proved that a false representation has been made knowingly, without belief in its truth; or recklessly or carelessly as to whether it be true or false, as follows: Fraud in this context consists of a false statement of fact which is made by one party to a transaction to the other knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false, with the intent that it should be acted upon by the other party and which was in fact so acted upon 24 Duress occurs where one party has induced the other to enter into a contract as a result of illegitimate pressure. The pressure does not need to completely overbear the will of the other party; it need only influence or deflect that will. The effect of duress is to restrict the will of a party by impacting upon their capacity to give consent. Whilst duress is not defined in the Act, McHugh JA s definition of duress in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 has been adopted as the rest to be applied by Ryan FM in SH and DH (2003) FLC as follows: A person who is the subject of duress usually knows only to well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. The party seeking to set aside or vary Orders must have been incapable of providing informed consent or of making an informed decision as a result of the conduct of the other party 25. Case law has established that duress is less likely to be made out where the party seeking to set aside Orders had received independent legal advice, and were actively involved in negotiations 26. Case law with respect to the concept of duress in family law matters turns on the facts of each case. Note: Unlike section 90K and 90UM, which deal with the setting aside of financial agreements, equitable concepts of unconscionable conduct and mistake are not specific grounds upon which property orders can be set aside. 22 Clifton and Stuart (1991) FLC Byrne v Byrne (1965) 7 FLR 342 at p 343 and Taylor v Taylor (1979) FLC at pp 78, 589, 78, 590, 78, 594 and 78, Derry v Peek (1889) 14 AC 337 (at p 374) as adopted by the Full Court in Green and Kwiatek (1982) FLC Riley & Pateman [2000] FamCA Morrison [1994] FamCA 153: SH & DH (No.1) [2003] FMCAfam 330. Page 10

11 Suppression of evidence 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. 27 The 2000 amendments to section 79A inserted the words including the failure to disclose relevant information, which broadens the reach of the provision. Orders have been set aside under this ground where a party has failed to make full disclosure with respect to a marital asset (for example, the ownership or value of the asset), then disposed of the asset shortly after orders were made. 28 The giving of false evidence was described by Gibbs J in Taylor v Taylor 29 as follows there is no reason to read false in s 79A as meaning wilfully false, particularly since fraud is separately mentioned in the section. Any other circumstance? Case law suggests circumstances for relief relying upon this and section non-appearance of a party at a hearing (ie. a denial of natural justice) or if a party s legal representation were so bad as to be the equivalent of no representation at all, or if the representation were perverse (eg. because the legal representative was in league with the other side) 30. SECTION 79A CONTINUED Section 79A(1)/90SN(1) Orders may be set aside or varied where it is impracticable for an order to be carried out or impracticable for a part of an order to be carried out because of circumstances that have arisen since the order was made. The contractual doctrine of frustration is often quoted to assist in the interpretation of this provision. Should an intervening event occur after Orders are made, even if not caused by the fault or conduct of either party, and the terms of the Orders cannot be performed, then a court might order that the Orders be set aside. However, if the Orders can be performed but results in a potentially different outcome from what was intended by the parties, then it is less likely a court will set aside the Order. For example, in Greenwood and Greenwood, 31 the husband applied to have orders by consent set aside in the following circumstances: The offer of finance contemplated in the orders was withdrawn by the bank; The unforeseeable events of the global financial crises and of record floods had resulted in a significant reduction in the value of the properties; The combination of the above factors made it impracticable for him to carry out the order; and It was proper to construe the agreement between the parties leading to the consent orders as a contract between the parties, which contract was in turn, subject to contractual principles, including frustration. As execution of the orders in their terms had become to the 27 Taylor v Taylor (1979) FLC Morrison (1995) FLC , Barker v Barker [2007] FamCA 1279, Pearce & Pearce [2014] FamCA Taylor v Taylor (1979) FLC Mercier & Deagon (2015) FLC Greenwood and Greenwood [2009] Fam CA 787 Page 11

12 husband commercially impracticable and where his fundamental assumptions had become in the course of events, invalidated, then the provisions of s79a had been made out. The wife applied to have the husband s section 79A application summarily dismissed. The trial judge allowed the wife s application, stating (amongst other things): The evidence may establish that there has been an unexpected down turn in value, probably produced by a combination of factors, including floors and the global financial crisis. The consequences have satisfied me that the process of carrying out the orders has become more truncated and problematic and, unfortunately, it may well be the case that the husband will suffer hardship and may secure significantly less than he had anticipated from the property settlement because of these matters. However, such factors cannot be a basis to set aside property orders pursuant to s 79A. The evidence does not establish that circumstances have arisen since the making of the order which make its implementation impracticable, whether commercially or otherwise. The primary property remains available to be sold. Should the second auction proceed and fail to meet that reserve, the wife can apply to the court and the husband can be heard about the terms and conditions of the sale of B property and other properties in accordance with the schedule. The reality is that the sale can proceed and the wife can be paid. Even if one accepts the worst case scenario highlighted by counsel for the husband by reference to evidence produced by an accountant, the reality is that there is going to be sufficient to meet the orders made in this case. It may well be that, on a worst case scenario, the husband will receive substantially less than had been anticipated by him, but there is ample authority for the proposition that a drop in value is not a basis for setting aside property orders and, in fairness, counsel for the husband conceded that point. In my view, the husband s grievance, in reality, is that he may now not receive a fair and just and equitable portion of the property, but even that is not the test. His grievance is that, with the benefit of hindsight, it has proven to be commercially unprofitable to agree to pay the wife a fixed lump sum. Given his time again, the husband might well have included subject to finance clauses, rise or fall clauses or percentage distribution clauses, in lieu of or in addition to the terms appearing in the orders. He had an expectation of securing finance and that did not come to pass and the market has fallen. He took the risk of a lump sum order and the bargains he struck have failed him and have not borne fruit. He is disappointed and he may suffer a not insignificant financial consequence. However, in my view, these are nothing more or less than the exigencies of life and litigation. Both parties assumed risks by opting for a lump sum order. If the good rains had doubled the value of the property and if the wife s expectation of receiving a 40 per cent share became a mere 20 per cent entitlement, she could not avoid her bargain by use of s 79A. Changes of fortune after a bargain is struck and final orders made do not constitute impracticability and do not otherwise constitute a ground to set aside orders properly made by this court. Section 79A(1)(c)//90SN(1)(c) Where a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order. Orders were made providing that a property was to be sold and the proceeds divided between the parties, however, before the property could be sold, the husband had it demolished. The Orders were varied so that upon the sale of the property, the wife would receive an increased amount of Page 12

13 the proceeds to counter the diminution in value of the property caused by the husband s actions in demolishing it. 32 A party s own default will not generally lead to success under this ground 33, unless a court can be persuaded that is it just and equitable. Section 79A(1)(d)//90SN(1)(d) Orders may be set aside if, since the making of the Orders, a material change in circumstance has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and as a result of the change, the child or the carer of the child will suffer hardship if the court does not set the financial agreement aside. Simpson and Hamlin 34 found that the court must consider in the exercise of its discretion whether [the] hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the court. Exceptional circumstances must be outside the normal vicissitudes of life for example, a change in where a child lives would not usually be considered an exceptional circumstance. Section 79A(1)(e)//90SN(1)(e) A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage. Section 79A(1A)//90SN(2) Orders for property adjustment may also be set aside with the consent of the parties. Procedure for s79a applications 1. File the documents in the Family Court of Australia or the Federal Circuit Court of Australia Documents to be filed with the application are: Initiating Application; Financial Statement; Supporting affidavit. A filing fee of $330 is payable. 2. Service Serve the documents upon the other parties to the proceedings, or their solicitors. 3. First return date At the first return date in the Family Court, a case assessment conference will be held before a Registrar. In the Federal Circuit Court, a Judge will case manage the matter. 32 GAUDRY, KS and GAUDRY, RJ (No 1) (2004) FLC Cawthorn v Cawthorn (1998) FLC ; [1998] FamCA Simpson and Hamlin (1984) FLC Page 13

14 Procedural directions will be made at the first return date. If the Court considers that the particulars of the applicant s claim are not sufficiently clear based on their application and affidavit, Orders for the applicant to provide further and better particulars may be made. A conciliation conference may be ordered, although there is no requirement that one take place. The Court will also determine whether the threshold issue necessities a preliminary hearing. That is, whether there is a ground to set aside the orders. Usually the threshold issue will be heard on the first day of trial; however, you may wish to consider seeking this issue be dealt with at a preliminary hearing to save time and cost, particularly if the redetermination of property interests will take significant time. 4. Discovery/subpoenas/Notices to Produce Disclosure requests are usually with respect to whether the threshold has been established by the applicant. 5. Trial The first day of trial is likely to involve procedural hearing before a judge. Whether or not a determination as to threshold is required will be the judge s first consideration. The applicant will be required to file trial material first. When running a section 79A application, it may be appropriate to utilise the following tools: 1. Pleadings - used with efficacy to define the issues in dispute and clearly put the other side on notice of the case to be met. 2. Notice to Admit Facts - particularly in respect of applications to set aside arising out of consent Orders made after the filing of an Application for Consent Orders; and 3. Subpoenas. THE DIFFICULT CLIENT Now and then you may have a client who renders you doubtful as to whether they heed (or even read) the advice you give, and/or whether as a consequence, once Orders are made in their matter they may change their mind and attempt to renege on the Orders. In terms of practical tips to lessen the risk when dealing with a capricious client, we provide the following advice: Provide your advices to the client in writing; Secure the client s instructions in writing; If instructed to take a course of action which is outside the scope of the advice you have provided to your client, secure those instructions in writing; If you are concerned that your client may lack capacity to give you instructions regarding orders to seek / enter into by consent, consider adjourning the matter in order to obtain the necessary medical evidence as to your client s capacity; If instructed to take a course of action which is outside of your overriding duty to the Court, consider ceasing to act. Page 14

15 We also caution you in respect of accepting Orders on your client s behalf at a hearing. It is of integral importance that your client understands the Orders you propose to accept on their behalf and that you have received clear instructions from your client to accept the Orders (preferably in writing). When you are considering appeals, reviews, or orders to set aside, it always best practice to seek the advice of senior lawyers and/or counsel. Kirstie Colls Senior Associate Accredited Family Law Specialist Barry.Nilsson. Lawyers With thanks to: Caitlin Elliott Solicitor Barry.Nilsson. Lawyers 12 October 2016 Page 15