Family Court: setting aside should be part of property settlement trial

Family Court: setting aside should be part of property settlement trial

The Full Court of the Family Court has recently held that trial judges should avoid hearing setting aside proceedings under section 106B of the Family Law Act separately from the related property settlement proceedings under section 79 of the Family Law Act.

In VC and GC, Justices Warnick, Boland and Thackray held:

It is generally undesirable to have a discrete hearing of a s 106B application. This is especially so where, as was the case here, findings of credibility are likely to be important. The judge may well make a favourable or unfavourable finding in determining the s 106B questions but, in the light of what subsequently transpires in the balance of the s 79 proceedings, wish that he or she had not done so.

Also the questions that are answerable in a discrete hearing may be more limited than is often appreciated. Questions of intention and whether an order was “anticipated” or not may be answerable, but whether, even if those questions are answered affirmatively, an anticipated order is likely to be defeated, might well not be answerable until the completion of s 79 proceedings

Request an Appointment
Fill in the form below to find out if you have a claim.
Request an Appointment - Stephen Page
Things to Read, Watch & Listen

South Australia surrogacy agreements: are they unlawful?

South Australia takes a distinctly narrow approach to surrogacy agreements. The issue is not simply whether a proposed arrangement is altruistic, or whether everyone involved has acted with the best of intentions. Under the Surrogacy Act 2019 (SA), the first question is whether the arrangement falls into the category of a lawful surrogacy agreement. That… Read More »South Australia surrogacy agreements: are they unlawful?

WA surrogacy parents: register now for parentage orders

Western Australians who have had a child through surrogacy, whether in Western Australia, elsewhere in Australia or overseas, may soon have an important opportunity to obtain legal recognition as parents. The Western Australian Government is seeking registrations from past surrogacy parents who do not have a parentage order. This is particularly significant for families who… Read More »WA surrogacy parents: register now for parentage orders

Parenting plans vs consent orders explained

When parents separate, one of the most important questions is how arrangements for children will be recorded. Will the agreement be kept flexible through a parenting plan, or formalised in legally binding consent orders? There is no single answer that suits every family. The right option depends on the level of trust between parents, the… Read More »Parenting plans vs consent orders explained

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board