Ullrich & Kraft

In *Ullrich & Kraft*, Kent J of the Family Court of Australia considered an application by the Wife to set aside or vary property settlement orders made under section 79 of the *Family Law Act 1975* (Cth). The Wife sought to invoke section 79A of the Act, alleging a miscarriage of justice. The Husband sought the dismissal of the Wife's application.

The central legal issue before the court was whether the Wife had established a miscarriage of justice, within the meaning of section 79A(1)(a) of the *Family Law Act*, by reason of fraud, duress, suppression of evidence, the giving of false evidence, or any other circumstance. This required the court to consider the nature of a "miscarriage of justice" in the context of property settlement proceedings and the influence of external factors on the judicial process.

Kent J noted that section 79A is a remedial provision to be construed liberally to overcome miscarriages of justice. The court considered the circumstances surrounding a valuation obtained in December 2006, which was not formally tendered in earlier proceedings. The valuation contained significant qualifications, including a statement that it was current only as at the date of valuation and that reliance upon it after three months from that date was not assumed to be accurate. The court referenced established principles that a miscarriage of justice can encompass a variety of matters and circumstances that influence the outcome of litigation, not solely issues relating to the integrity of the court hearing itself.

The Wife's application pursuant to section 79A of the *Family Law Act* was dismissed. The Husband was ordered to pay the Wife's costs of and incidental to her application filed on 7 October 2010, to be agreed or assessed on an indemnity basis. There were no orders as to the costs of the section 79A application, and all other pending applications were removed from the list.