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

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

Sperm donor family limit in Queensland explained

Queensland’s new sperm donor family limit was intended to create clarity, consistency and better access to donor sperm. Instead, guidance issued to IVF clinics has produced a result that appears to halve donor access for many lesbian couples. The legislation provides for a 10-family limit. Yet where two women are in a couple and seek… Read More »Sperm donor family limit in Queensland explained

NSW fertility inquiry: surrogacy evidence under scrutiny

The New South Wales Legislative Council fertility inquiry is examining difficult and practical questions about access to assisted reproductive treatment. Distance matters. Cost matters. Regulation matters. For many people trying to create a family, these are not abstract policy concerns. They can determine whether treatment is available at all. Among the issues before the inquiry… Read More »NSW fertility inquiry: surrogacy evidence under scrutiny

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