Cotter and Cotter (No 2)

In *Cotter and Cotter (No 2)*, Foster J of the Family Court of Australia considered an application by the wife for an order under s79A of the *Family Law Act 1975* (Cth) to set aside or vary previous property settlement orders, and the husband's application for enforcement of those orders. The dispute centred on the wife's assertion that the original orders, made by consent, were vitiated by her misunderstanding of the husband's financial position and the implications of the settlement.

The primary legal issue before the court was whether the wife had established grounds to set aside or vary the consent orders under s79A of the *Family Law Act 1975*. This required the court to determine if there had been a miscarriage of justice due to fraud, duress, undue influence, or other similar circumstances, or if there had been a failure to disclose material financial information by either party. The court also had to consider the husband's application for enforcement of the existing orders.

Foster J found that the wife had not discharged the onus of proving that the consent orders were obtained by fraud, duress, or any other vitiating factor. Her Honour was not satisfied that the wife had been misled or that there had been any material non-disclosure by the husband. Consequently, the court dismissed the wife's application to set aside the consent orders.

The court ordered that the wife pay the husband's costs of and incidental to her s79A application and his application for enforcement on a party/party basis.