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Additional resources for Essential Family Law, 2nd edition (Essential)
In Prowse (1995), the Full Court emphasised that the 31 ESSENTIAL FAMILY LAW legislature had clearly given the court such a discretion even in view of the court’s primary finding that a miscarriage of justice has occurred. Baker, Rowlands and Lindenmayer JJ stated: The better view, in our opinion, is that an applicant for an order under s 79A(1) bears the onus of satisfying the Court that the original orders should be set aside or varied, and that includes the onus of satisfying the Court not just that there has been a ‘miscarriage of justice’ but also that the appropriate exercise of the discretion is to so order.
However, orders made as to the remaining property were influenced by the amount of those holdings. In Mitchell (1995), the trial judge did not include the substantial superannuation fund as ‘property’. However, her Honour substantially increased the percentage to which the wife was entitled in the remaining property under s 75(2) (see below, p 27 et seq). The Full Court affirmed this approach and set out a range of options for such a case including: • proceedings under s 85 to set aside transactions (see below, p 35); • interim property orders and an adjournment under s 79(5) ‘until the financial resource vests as property’; • lump sum maintenance to be payable in future years; • greater allowance under s 75(2).
In Browne and Green (1999), the Full Court referred to Baker J’s statement as the ‘Kowaliw guideline’. The court found it manifestly unjust to depart from the Kowaliw guideline in placing on the husband the full burden of losses merely because he initiated and had control over the venture which led to the losses. In this case, the wife was found to be a willing participant in the venture. In the case of Re Q (1995), Kay J made reference to the difficult years that lay ahead of the wife and children after the husband had been convicted of sexually abusing his daughter over a six year period.