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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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