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FAMILY LAW ACT 1975 - SECT 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)  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

                     (b)  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

                     (c)  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

                     (d)  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

                     (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;

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)  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.

       (1AA)  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

                     (b)  a parenting order provides that:

                              (i)  the child is to live with the person; or

                             (ii)  the person has parental responsibility for the child.

          (1B)  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.

          (1C)  Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies:

                     (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;

                     (b)  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 (b) 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

                     (b)  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

                     (b)  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

                     (b)  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.



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