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Setting Aside Court Orders – Failure To Disclose Information

James Bailey
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09 October 2020

In every family law property settlement there is a duty to provide financial disclosure.  If a court order has been made and there is a failure to disclose financial information this can result in the court order being set aside.

Financial disclosure in family law matters is not optional

Previous articles have set out how the provision of financial disclosure in family law matters is not optional and why hiding assets is not a good idea.  If you go to court and see an experienced lawyer it is very difficult to see how a spouse could not understand that they have a duty to provide financial disclosure.

The obligation to provide financial disclosure and be truthful in disclosing your financial circumstances applies equally whether you go to court or whether you resolve your property settlement by consent.  When people resolve matters by consent the Application for Consent Orders that needs to be signed and filed requires former partners to cross a box confirming that they have told the truth, that they have disclosed all relevant assets and liabilities and that all estimates in the documents are “based on knowledge, information and belief and is given in good faith”.

A failure to disclose can result in orders being set aside

A failure to disclose financial information can result in an Application being filed to set aside the orders pursuant to section 79A of the Family Law Act.  To be successful a person needs to show:-

  1. there has been a miscarriage of justice by reason of suppression of evidence (including failure to disclose relevant information or the giving of false evidence; and
  2. the court then needs to be persuaded that the orders should be set aside. Section 79A gives the court a discretion to set aside the order.

Where you are seeking to set aside orders you need to be able to persuade a court that the false information or the additional information would have resulted in a meaningful impact on the outcome of the property settlement.  These circumstances can include not disclosing bank accounts, superannuation accounts or the giving of false evidence such as totally inaccurate and unrealistic estimates of values of assets.  However the provision of this information by itself is not sufficient you also need to be able to show this would have had a real impact on the property settlement.

People can lodge section 79A Applications months or years after a property settlement is completed.

What happens if orders are set aside?

If the Application to set aside the orders is successful then the party who failed to disclose may well be ordered to pay all or a proportion of the other party’s costs.  In addition you will have all of your own legal costs to pay.

As these articles show there is no value in trying to hide assets or giving false information.  It will only end up costing you in the long run.

If you believe that someone has hidden assets or someone is alleging that about you then you should seek advice from an experienced family lawyer about the prospect of a court setting aside the court orders.  Contact one of our solicitors on 07 4963 2000 or through our online contact form below.