Property – order set aside by consent, pursuant to s79A(1A)…

family law casenotes

…third parties ‘interested persons’ entitled to be heard, pursuant to s79A(2)

In Jess (No 3) [2023] FedCFamC1A 2 (10 January 2023), the Full Court (Alstergren CJ, Aldridge & Austin JJ) refused an application for leave to appeal from orders made in s79A proceedings (Family Law Act 1975 (Cth)).

The proceedings were filed by a wife where the executor of the husband’s estate, the estate’s trustee in bankruptcy and the wife agreed to the court, setting aside consent orders made in 2009 via s79A(1A).

The 2009 orders were based on a deed of trust, to the effect that the husband’s interest in a unit trust was held on trust for the husband’s adult son.

The adult son appealed, arguing that he was denied the right to be heard on the question of whether the order should be set aside.

The Full Court said (from [60]):

“The applicants contend that they are other persons interested for the purposes of s79A(2) and … were entitled to be heard on the issue of the s79 orders being set aside under s79A(1A). … (…)


[64] The … question … is the extent of the meaning of ‘other person interested’ within s79A(2). (…)

[73] … [P]ersons interested go beyond those who are seeking orders for their protection. Included in those are categories of persons whose interests fall short of a legal right but where that person is affected to a greater degree than a member of the general public. (…)

[83] … [T]he practical effect of the orders under appeal is that the applicants will now be the subject of proceedings to which they were previously immune. (…) That risk … gave the applicants a sufficient interest in the proceedings so as to entitle them to be heard. (…)

[86] … [T]he applicants must show that a substantial injustice would flow if leave was not to be granted. (…)

[92] … [N]o orders have yet been made that affect the applicants’ rights … It is difficult to see how a substantial injustice arises from the error of the primary judge.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (

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