Under the Family Law Act 1975 (Cth) in Australia, a party to a family law proceeding may either appeal a final order or make a section 79A application to vary, set aside, or reverse a final property settlement order. The choice between these two options depends on the circumstances of the case, the legal basis for challenging the order, and the remedy sought. Below, we explain when each approach is applicable.
Appealing a Final Order
An appeal is the process of challenging the legal correctness of a final order made by a court, typically on the basis that the judge made an error of law, fact, or discretion. Appeals are governed by Part X of the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
When to Appeal
- Error of Law or Fact:
- A party believes the judge misinterpreted or misapplied the law (e.g., incorrectly applied the principles in section 79 for property division).
- The judge made a factual error (e.g., relied on incorrect evidence or ignored critical evidence).
- Error in Discretion:
- The decision was “unreasonable” or “plainly unjust,” meaning it fell outside the reasonable range of judicial discretion (e.g., a grossly unfair division of property without proper justification).
- This is often harder to prove, as courts have broad discretion in family law matters.
- Procedural Unfairness:
- The trial process was flawed (e.g., a party was denied a fair hearing or natural justice).
- Timeframe:
- An appeal must be filed within 28 days of the final order being made (Rule 22.03 of the Family Law Rules), unless an extension is granted by the court.
- Outcome Sought:
- The goal is to have the appellate court (usually the Family Court Division 1 or a Full Court) overturn or vary the order and potentially remit the matter for rehearing.
Example:
If a judge incorrectly calculated a party’s contributions under section 79(4) or failed to consider a significant asset, a party might appeal to have the order corrected based on legal or factual error.
Section 79A Application
A section 79A application allows a party to apply to the court to set aside, vary, or reverse a final property settlement order in specific circumstances. It is not about correcting judicial error but rather addressing exceptional situations that undermined the validity or fairness of the original order.
When to Use Section 79A
Section 79A(1) outlines the grounds for such an application:
- Miscarriage of Justice:
- Due to fraud (e.g., a party concealed assets or provided false evidence).
- Duress or suppression of evidence (e.g., a party was coerced into agreeing to the order or critical evidence was withheld).
- Any other circumstance that caused a miscarriage of justice (e.g., significant non-disclosure of financial circumstances).
- Impracticability:
- It has become impracticable to carry out the order (e.g., an asset ordered to be sold no longer exists or has drastically changed in value).
- Default by a Party:
- A party has defaulted on obligations under the order, causing hardship to the other party (e.g., failure to pay a sum ordered, affecting the overall settlement).
- Exceptional Circumstances (Children):
- Exceptional circumstances have arisen since the order, relating to the care, welfare, or development of a child, and a party will suffer hardship if the order is not varied (e.g., a significant change in a child’s needs that impacts financial arrangements).
- Consent Orders:
- If the original order was a consent order (agreement between parties formalized by the court), a section 79A application can also be used to challenge it on the above grounds.
- Timeframe:
- There is no strict time limit, but the application should be made within a reasonable time, and delay may be a factor considered by the court.
- Outcome Sought:
- The court may set aside the order entirely, vary specific parts, or make a new order in substitution.
Example:
If a party discovers after the final order that their ex-spouse hid a substantial offshore bank account (fraud), they could file a section 79A application to set aside the order and seek a redivision of the property pool.
Key Differences and Considerations
| Aspect | Appeal | Section 79A Application |
|---|---|---|
| Basis | Error by the judge (law, fact, or discretion) | Exceptional circumstances (e.g., fraud, impracticability) |
| Purpose | Correct judicial mistake | Address flaws in the order’s foundation |
| Time Limit | 28 days from the order | No strict limit, but reasonable time applies |
| Court | Appellate court (e.g., Full Court) | Original court (e.g., Division 2 or 1) |
| Outcome | Order overturned or remitted | Order set aside, varied, or replaced |
Practical Choice
- Appeal is appropriate when the issue is with the judge’s reasoning or process.
- Section 79A is used when new evidence or circumstances (unrelated to judicial error) undermine the order’s validity or fairness.
Conclusion
A party would appeal a final order if they believe the judge erred in law, fact, or discretion during the decision-making process, and they must act quickly within 28 days. Conversely, a section 79A application is the right path if there’s evidence of fraud, duress, impracticability, or other exceptional circumstances that justify revisiting the order, regardless of whether the judge’s decision was technically correct at the time. The choice depends on the specific facts and what went wrong—whether it’s a judicial mistake or a problem with the underlying circumstances of the order. Whichever scenario you consider to be the most relevant to your situation, we recommend that a brief be prepared to experienced family law counsel (a senior family law barrister) to advise as to the appropriate strategy and evaluate the prospects of success, before taking any action. As time is of the essence, do not delay, contact Jano Family Law today.