When the Family Court refers to property orders being “final” it means that the orders have been deemed to finally determine the financial relationships between the parties to the marriage or de facto relationship and neither party will have recourse to further proceedings between them. See section 81 of the Family Law Act 1975 and the equivalent section 205ZJ of the Family Court Act (WA) 1997.
We often receive enquiries from clients about wanting to change final property Orders because of circumstances which have occurred since the date that the final Orders were pronounced. The issue is whether the requested change should require the expense and preparation of a new set of amended Orders to be approved by the Family Court. The answer depends on what are the proposed changes and the context of the parties’ relationship.
For example, if Party A is required to pay a certain amount to Party B within 30 days of the Orders, but Party A needs 60 days because of delays in obtaining the necessary financing, the parties can agree to the change documented in the form of correspondence. As a practical matter, neither party may wish to incur the additional expense of legal fees to obtain a new set of orders. This would particularly be the case where Party A has kept Party B informed of the status of his refinancing and there is a level of trust between the parties.
However, where the proposed amendment is more substantial or where there has been a history of distrust and rancour between the parties, both parties may wish to have a new set of orders issued for their own protection. For example, where Party A has proposed a lump sum cash payment to Party B in lieu of instalment payments in the original final Orders.
Where both parties consent to the making of new orders, section 79A(1)(1A) of the Family Law Act (equivalent section 205ZH(2) of the Family Court Act WA) provides that:
“a court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
The key point to note is that both parties must consent to the change in the property orders. If despite your best efforts, the other party will not consent to a change in the final Orders your only option is to bring an Application in the Family Court to set aside the Orders. However, there are very limited circumstances in which one party can set aside final Orders. In brief summary, section 79A(1) of the Family Law Act (equivalent section 205ZH(1) of the Family Court Act WA) provides that the Court may exercise its discretion and set aside final Orders where the Court is satisfied that:
- there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
- in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
- a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
- in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child, the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order;
If you are considering changing a set of final Orders, we recommend you seek legal advice as a solicitor may be able to offer you some practical advice on how best to achieve your intended result. You may contact our Family Law team at HHG who can provide advice tailored to your specific circumstances.
If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.