Orders Altering Property Interests

This article will discuss sections 79A to 79C of Part VIII Family Law Act 1975 that relates to orders altering property interests. The main topics in this article are the following:

• Setting aside of orders altering property interests
• Notification of proceeds of crime orders
• Staying of property or spousal maintenance proceedings affected by proceeds of crime orders

Orders Altering Property Interests: Setting Aside of Orders Altering Property Interests (Section 79A)

Section 79 of the Act allows the courts to conduct an alteration in the property interests during property settlement proceedings. On the other hand, section 79A allows the court to set aside the section 79 orders altering property interests. Provided, the person affected by such order applies to the court to set aside the order.

These are the circumstances when the court may set aside such orders:

1. There has been a miscarriage of justice by reason of:
   • Fraud
   • Duress
   • Suppression of evidence 
   • Giving false evidence or any other circumstance.
2. In the circumstances that have arisen since the order was made, it is impracticable for the order or any part thereof to be carried out.
3. A person has defaulted in carrying out an obligation imposed on the person by the order.
4. In the circumstances that have arisen as a result of such 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.
5. 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
6. The applicant has caring responsibility for the child, 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.
7. A proceeds of crime order has been made covering property of the parties to the marriage or either of them or one that is against a party to the marriage.
8. The court may, in its discretion, vary the order or set the order aside and make another order under section 79 in substitution for the order so set aside if it considers appropriate.

When Does a Person Have a Caring Responsibility for a Child?

According to the same section, a person has caring responsibility for a child if:

• the person is a parent of the child with whom the child lives; or
• a parenting order provides that:
  • the child is to live with the person; or
  • the person has parental responsibility for the child.

Is a Section 79A Order Still Enforceable Even After Death?

Yes. It provides that after the death of a party to the marriage in which the order was varied or made, such order may still be enforced on behalf of, or against the estate of the deceased party.

What Is the Effect of Death of a Party Before the Commencement of the Proceedings Under Section 79?

1. The proceedings may be continued by or against 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.
2. 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 if the court thinks:
   • that it would have exercised its powers under section 79A in relation to the order if the deceased party had not died; and
   • that it is still appropriate to exercise its powers under section 79A in relation to the order
3. An order varied or made by the court in the preceding number may be enforced on behalf of, or against the estate of the deceased party.

Orders Altering Property Interests: Notification of Proceeds of Crime Orders Etc. (Section 79B)

Section 79B lays down the rules if an individual makes an application for an order under Part VIII (Property, Spousal Maintenance, and Maintenance Agreements). 

It provides that if a person makes such an application concerning:

• the property of the parties to a marriage or either of them 
• the maintenance of a party to a marriage, and

the person knows that the property of the parties to the marriage or either of them is covered by:

• a proceeds of crime order
• a forfeiture application,

such person must comply with the following requirements under this section:

1. Disclose in the application the proceeds of crime order or forfeiture application.
2. Give the court a sealed copy of that order or application.

What if the Applicant Is a Party to the Property Settlement or Spousal Maintenance Proceedings?

Section 79B states that if a person is a party to property settlement or spousal maintenance proceedings and is notified by the proceeds of crime authority that the property of the parties to the marriage or either of them is covered by a proceeds of crime order or a forfeiture application, the person must do the following:

1. Notify the Registry Manager in writing of the proceeds of crime order or forfeiture application.
2. Give the Registry Manager the following copies:
   • a copy of the notification
   • a copy of the proceeds of crime order or forfeiture application

What if the Applicant Does Not Comply?

If one does not comply with the above-mentioned requirements, the applicant commits a punishable offence, on conviction, by a fine not exceeding 50 penalty units or AUD 2200 (NSW).

Orders Altering Property Interests: Court to Stay Property or Spousal Maintenance Proceedings Affected by Proceeds of Crime Orders Etc. (Section 79C)

This section states the rules and circumstances when the court may stay the property or spousal maintenance proceedings affected by proceeds of crime orders. These are the following:

1. A court in which property settlement or spousal maintenance proceedings are pending must stay those proceedings if notified under section 79B in relation to the proceedings.
2. The court may, before staying the proceedings, invite or require the proceeds of crime authority to make submissions relating to staying the proceedings.
3. A court must, on the application of the proceeds of crime authority, stay property settlement or spousal maintenance proceedings if the property of the parties to the marriage or either of them is covered by a proceeds of crime order or a forfeiture application.

Who Is a Proceeds of Crime Authority?

Section 4C of the FLA provides that it is the responsible authority for the relevant restraining order, forfeiture order, or forfeiture application under the Proceeds of Crime Act 2002. Moreover, under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions.

Seek the Expertise of a Property Lawyer

Property lawyers can help in FLA orders altering property interests in a number of ways, including:

• Providing legal advice and guidance and explain the process of applying for an order altering property interests. 
• Representing you in court for proceedings in setting aside an order altering your property interests. 
• Identifying all of the assets in the property pool.
• Assessing the value of the assets which include businesses, real estate, or retirement accounts.
• Determining the parties’ respective contributions to the assets

If you are considering setting aside an order altering your property interests, it is essential to speak to a lawyer as soon as possible. JB Solicitors can help you understand your legal rights and options and protect your interests throughout the process.

Contact us today.