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

Surrogacy lawyer explains upcoming ALRC reports

Australia is approaching an important moment for family and fertility law. By the end of July 2026 and during August 2026, the Australian Law Reform Commission, or ALRC, is expected to deliver two major reports to Commonwealth Attorney General Michelle Rowland. One report will address surrogacy law. The other will examine Australia’s human tissue laws.… Read More »Surrogacy lawyer explains upcoming ALRC reports

Overseas surrogacy births now recognised in Australia

For years, the recognition of parents through overseas surrogacy has been unnecessarily uncertain. Australian intended parents could return home with a child, a foreign birth certificate and a foreign court order, yet still face questions about whether Australian law recognised them as parents. That position changed on 1 April 2025. It may be April Fool’s… Read More »Overseas surrogacy births now recognised in Australia

Do children have a say in parenting cases? Lawyer explains

In Australian parenting cases, children can have a say. That much is clear. But the more accurate answer is that yes, children’s views matter, but the weight given to those views depends on the individual child and the circumstances of the case. That is often where confusion starts. Many parents assume a child can simply… Read More »Do children have a say in parenting cases? Lawyer explains

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