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Tony, Michael and David Partners at ABKJ
ABKJ Lawyers

So you think you and your ex are amicable? Read this before you sign on the dotted line.

You and your ex are on good terms and you have agreed as to who will keep the boat and who will keep the house.  There are two ways to sever your financial relationship with your former partner when your marriage or de facto partnership comes to an end and that is by way of a Binding Financial Agreement or Orders of the Court.  Orders of the Court can be obtained one of two ways – either after a contested trial or by consent. 

Here are a few things you should consider before you sign on the dotted line for Consent Orders.

Pursuant to section 79A of the Family Law Act 1975, orders of the Court (whether granted by consent or otherwise) which alter property interests between two people of a former relationship can be set aside on the following grounds:-

  1. There has been a miscarriage of justice by reason of fraud, duress or suppression of evidence; or
  2. A change in circumstances since the orders were made are impossible or impracticable, in part or in whole, to be carried out; or
  3. A party in default of the orders gives rise to a change in circumstances which makes it just and equitable to set aside or vary the orders; or
  4. Circumstances of an exceptional nature have arisen relating to the care, welfare and development of a child or the carer of the child will suffer hardship if the orders are not set aside (or varied); or
  5. A proceeds of crime order has been made covering the property or against a party.

In September 2010, a husband and wife entered into Consent Orders in a bid to avoid the stress and expense of a battle in the Court room and distributed the assets between them as agreed.  After separation, both the Husband and Wife were amicable and issues of trust had not been completely eroded.  So when the Husband approached the Wife with an application for Consent Orders and said “I just need to fill in your income. It’s all ready for you. All ready to go. You just need to sign it and you can keep your home”. She told him her income was $800 per week and she signed the Application still standing in the doorway of her home without properly reading the Court documents as she still trusted the husband and did not believe that he would do anything to adversely impact her interests.

Nine years later, the Wife applied to the Courts to have the orders set aside or varied to include a splitting order with respect to her former husband’s Superannuation (which was now in the payment phase).  The Wife’s application was successful and the orders made almost 10 years ago were set aside.  The nub of the wife’s case is the lack of disclosure by the husband as to the reality of his superannuation entitlements in the Application for Consent Orders. The parties both indicated in the Application for Consent Orders that they did not have any superannuation interest when, in fact, the husband had his Police Superannuation Scheme interest and another superannuation fund with a value of approximately $5,000 and the wife’s had a superannuation fund valued at about $41,000.

The husband’s super pension in the payment phase had a capitalised value of almost $1,000,000 as at the date of the Consent Orders. However, the Husband submitted that this capitalised value was not disclosed as he had already done so by disclosing a weekly income of $1,500 which included the income he was receiving each week as a pension. At the time the Application for Consent Orders were signed, the Wife acknowledged that his Police Pension did not cross her mind.  In fact, the Family Court of Australia noted that it was readily apparent that no one had turned their mind to this significant ongoing entitlement at the time of signing the Consent Orders.

The honourable Judge Foster relied upon ABKJ’s appeal case Carron & Laninga [2019] FamCAFC 115 in determining that a miscarriage of justice had occurred to the Wife by reason of the failure of the parties to disclose all relevant information in relation to the Husband’s Superannuation at the time the parties entered into Consent Orders. Whilst the case of Callis & Callis [2019] FamCA 750 above mentioned is a lesson in the necessity of full and frank disclosure for separating parties, it also highlights the importance of engaging an experienced family lawyer to consider the application on your behalf before you file. 

So if you have an agreement and would like to receive advice on your application for Consent Orders, contact our Family Lawyer and mediator, Michelle Felderhof of our office on (07) 5532 3199.