(1) A court may, on an
application by a person who was a party to the financial agreement,
termination agreement or former financial agreement, or by any other
interested person, make an order setting aside a financial agreement, a
termination agreement or a former financial agreement if, and only if, the
court is satisfied that —
(a) the
agreement was obtained by fraud (including non-disclosure of a material
matter); or
(aa)
either party to the agreement entered into the agreement —
(i)
for the purpose, or for purposes that included the
purpose, of defrauding or defeating a creditor or creditors of the party; or
(ii)
with reckless disregard of the interests of a creditor or
creditors of the party;
or
(b) the
agreement is void, voidable or unenforceable; or
(c) in
the circumstances that have arisen since the agreement was made it is
impracticable for the agreement or a part of the agreement to be carried out;
or
(d)
since the making of the agreement, a material change in circumstances has
occurred (being circumstances relating to the care, welfare and development of
a child of the de facto relationship) and, as a result of the change, the
child or, if the applicant has caring responsibility for the child (within the
meaning of subsection (2)), a party to the agreement will suffer hardship if
the court does not set the agreement aside; or
(e) in
respect of the making of a financial agreement or former financial agreement,
a party to the agreement engaged in conduct that was, in all the
circumstances, unconscionable; or
(f) a
payment flag is operating under the Family Law Act Part VIIIC on a
superannuation interest (as defined in section 90YD of that Act) covered by
the agreement and there is no reasonable likelihood that the operation of the
flag will be terminated by a flag lifting agreement under that Part.
(2) For the purposes
of subsection (1)(d), a person has caring responsibility for a child if
—
(a) the
person is a parent of the child with whom the child lives; or
(b) a
parenting order provides that the child is to live with the person; or
(c) a
parenting order provides that the person has parental responsibility for the
child.
(3) A court may, on an
application by a person who was a party to the financial agreement or former
financial agreement that has been set aside, or by any other interested
person, make such order or orders (including an order for the transfer of
property) as it considers just and equitable for the purpose of preserving or
adjusting the rights of persons who were parties to that financial agreement
or former financial agreement and any other interested persons.
(4) An order under
subsection (1) or (3) may, after the death of a party to the proceedings in
which the order was made, be enforced on behalf of, or against, as the case
may be, the estate of the deceased party.
(5) If a party to
proceedings under this section dies before the proceedings are completed
—
(a) the
proceedings may be continued by or against, as the case may be, the legal
personal representative of the deceased party and the rules may make provision
in relation to the substitution of the legal personal representative as a
party to the proceedings; and
(b) if
the court is of the opinion —
(i)
that it would have exercised its powers under this
section if the deceased party had not died; and
(ii)
that it is still appropriate to exercise those powers,
the court may make any
order that it could have made under subsection (1) or (3); and
(c) an
order under paragraph (b) may be enforced on behalf of, or against, as the
case may be, the estate of the deceased party.
(6) In this section
—
creditor —
(a) in
subsection (1)(aa), in relation to a party to the agreement, includes a person
who could reasonably have been foreseen by the party as being reasonably
likely to become a creditor of the party; and
(b) in
paragraphs (b) and (c) of the definition of interested person includes a
person who, at the commencement of the proceedings, could reasonably have been
foreseen by the court as being reasonably likely to become a creditor of
either of the parties to the agreement;
government body means —
(a) the
Commonwealth, a State or a Territory; or
(b) an
official or authority of the Commonwealth, a State or a Territory;
interested person , in relation to proceedings for
the setting aside of a financial agreement, termination agreement or former
financial agreement on the grounds specified in subsection (1)(aa) includes
—
(a)
either or both of the parties to the agreement; or
(b) a
creditor of either of those parties; or
(c) a
government body acting in the interests of a creditor of either of those
parties.
[Section 205ZV inserted: No. 25 of 2002 s. 47;
amended: No. 35 of 2006 s. 29 and 165; No. 28 of 2022 s. 24.]