The Family Law Act 1975 (Cth) s 79A(1)(a) allows the court to vary or set aside a property settlement agreement where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance. This includes where one party has failed to disclose his or her true financial circumstances. However, not every failure to provide full and frank disclosure during a property settlement agreement will amount to a miscarriage of justice. What is needed is to show that the failure to disclose has led the court to make an order that is substantially different from the order it would have made if full disclosure was made: Barker & Barker [2007] FamCA 13 [123].
Pendleton & Pendleton
In the case of Pendleton & Pendleton [2016] FCCA 285, the husband failed to disclose, among other things,
* A reimbursement of expenses amounting to $44,586.84,
* A $35,000 gratuity by an employer,
* A redundancy payment, and,
* Legal fees amounting to $74,000.
The wife applied to the Court to set aside the original agreement because of this non disclosure.
The first Judge to hear the case agreed with the wife that there had been a miscarriage of justice arising from non-disclosure of relevant information by the husband prior to making the property settlement agreement.
That Judge set aside the prior agreement and increased the amount that the husband had to pay to the wife in property settlement.
The husband appealed.
On appeal, in 2017, the Full Court agreed that the original agreement should be set aside but ruled that the amount ordered to be paid was too great. The Court of Appeal sent the case back for further hearing so that both parties could provide additional evidence to the Court.
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Disclaimer
Family law situations can be complex and sometimes they can involve serious issues. Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.
