If you have entered a consent order for property in the Family Court and you feel that the order can no longer be affected or is unjust, please consult us Family Law specialists of Rowan Skinner and Associates lawyers.
In the case of Jess & Jess (No 4) [2022] FedCFamC1F 530 the wife, together with executor of her deceased husband’s estate and the estate’s trustee in bankruptcy agreed to setting aside a 2009 family court order that was entered into when the husband was alive.
The appeal was brought by the adult son of the parties who denied that he was given a right to be heard in relation to whether the order should be set aside and said that the court made an error when he was found that he was not an ‘other person interested,’ such that his interests should have been considered.
Who is an interested person to set aside a Family Court order
This was much a very procedural judgment in which there had been two proceedings, first involving the deceased husband and his wife and second involving proceedings taken by the wife against the respondents in the Family Court.
The important consideration here was for the court to decide who are the appropriate persons to be parties to setting aside the court order.
The court held that it had to have regard to the interests of the bona fide purchasers and other interested persons and taking into account what order is to be made, which is separate to determining whether an order should be made for the protection for that person.
The subsection refers to two separate categories being for a ‘bona fide purchaser’ and a ‘person interested’ which are to be read disjunctively.
The court held that if it is to have regard to the interest of the bona fide purchaser or other persons interested, it follows that those persons must be heard to put that interest before the court.
What was the dispute?
In this case, the settlement orders in 2009 was part of a wider settlement which contained a settlement deed which involved the applicants, which was understood was the son, two others and seven companies. The settlement deed was conditional on the 2009 orders being made and complied with and were part of the overall family law dispute which included the applicants.
The deceased spouse’s adult son Mr Jess Jr., two other people and seven corporations jointly opposed the wife’s applications before the primary judge to set aside the orders. The issue emerged when the deceased and his son entered a deed in relation to a proprietorship of certain assets which resulted in the son having beneficial ownership of 103 ordinary units and 1 class D unit in a retail unit trust which was registered in the name of the deceased husband.
The trust deed entered into between the deceased and Jess’s son was purported to have been executed on 28 February 2002 that formed the subject of proceedings in 2019, where a judge found that the deed of declaration of trust dated 2002 was not executed on the date that it bore. Subsequently it was the subject of family court then High Court appeals such that when the matter came before the primary judge in June 2022. The question was whether or not the trust deed was found by the first judge to have been a fraudulent attempt to portray the deceased assets to put them beyond the reach of the wife in property settlement proceedings.
In 2007 there was an application in the Supreme Court of Victoria started by Jess Jr. in which he sought declaratory relief against his father and the wife concerning ownership of the assets the subject of the trust deed before the 2009 orders, these proceedings were settled by deed in which Mr Jess Jr’s asset position was acknowledged as the beneficial owner of the assets of the trust.
Ultimately the criticism of the primary judge was to restrict the definition of ‘other people interested’ to those seeking an order for their protection or persons interested in the order itself, as opposed for example being interested in subsequent proceedings that might flow from the orders being set aside.
However, in the result the court found there was no substantial injustice from the error of the primary judge because no orders have yet been made to alter or affect the applicant’s rights in any way as the husband’s son remained the holder of the units in the trust.
If you want to discuss setting aside a family court property order with an expert Melbourne Family Lawyer, please contact Rowan Skinner at ort office on 9995 9155. We also service family law clients in Melbourne Norther Suburbs, such as Northcote, Alphington, Carlton, Fitzroy, North Fitzroy, Kew and Heidelberg.
Rowan Skinner is a highly skilled family lawyer with over 35 years of experience across various legal roles and jurisdictions. Rowan specialises in resolving family law disputes such as divorce, financial settlements, child custody and domestic violence cases. Through his diverse and extensive experience, Rowan has a deep understanding of the complexities and nuances involved in family law. Rowan is a skilled negotiator and litigator who follows a compassionate and client-focused approach which prioritises helping you navigate what can be an emotional and challenging time.
