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Property – court’s power to set aside orders pursuant to s90SN is not fettered by common law considerations

In Hadwick & Scadden[2020] FamCAFC 168 (16 July 2020) the Full Court (Aldridge, Watts & Tree JJ) dismissed with costs an appeal where, after consent orders had been made, the de facto wife (respondent) sought that the orders be set aside pursuant to s90SN of the Act on the ground of non-disclosure; the de facto husband (appellant) seeking that her application be summarily dismissed pursuant to s45A(4) of the Act.

The appellant argued that “the doctrine of res judicata applies to preclude the respondent from ever raising the issue of the adequacy of…disclosure again” and that the Anshun principle applied.

The Full Court said (from [23]):

“…[R]es judicata and the principle in Anshun are common law doctrines…which have no application to the statutory rights provided by s90SN of the Act. (…)

[24] The sets of circumstances in s90SN(1) of the Act which can justify the setting aside of the otherwise final property settlement orders extend beyond the common law entitlements to have a judgment set aside for fraud or misrepresentation…There is no reason to read s90SN(1)(a)…other than in accordance with its terms which make it plain that it is not fettered by the common law considerations of res judicata, issue estoppel or the principle in Anshun. (…)

[26] The fact that a party could have obtained full disclosure but decided not to do so before entering into consent orders is not therefore a bar to relief under this section. …[T]he applicant’s claim that the respondent is estopped from pursuing proceedings pursuant to s90SN of the Act is misconceived. (…)

[36] …[T]he judicial controversy in the two proceedings is quite different. In proceedings under s90SM of the Act, the controversy is the identification and proper distribution of the parties’ property. A claim under s90SN(1) of the Act, raises the controversy as to whether there has been a miscarriage of justice such that earlier orders should be set aside.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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