Wednesday, 7 April 2010

Family Court: setting aside should be part of property settlement trial

The Full Court of the Family Court has recently held that trial judges should avoid hearing setting aside proceedings under section 106B of the Family Law Act separately from the related property settlement proceedings under section 79 of the Family Law Act.

In VC and GC, Justices Warnick, Boland and Thackray held:

It is generally undesirable to have a discrete hearing of a s 106B application. This is especially so where, as was the case here, findings of credibility are likely to be important. The judge may well make a favourable or unfavourable finding in determining the s 106B questions but, in the light of what subsequently transpires in the balance of the s 79 proceedings, wish that he or she had not done so.

Also the questions that are answerable in a discrete hearing may be more limited than is often appreciated. Questions of intention and whether an order was “anticipated” or not may be answerable, but whether, even if those questions are answered affirmatively, an anticipated order is likely to be defeated, might well not be answerable until the completion of s 79 proceedings

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