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
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. 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'
For example, if a party is required under the Final Orders to
pay a certain amount to the other party within 30 days of the
Orders, but they need 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 the
paying party has kept the other party informed of the situation 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
payment in instalments rather than a lump sum as set out in the
Final Orders a new set of Final Orders is recommended setting out
payment dates and amounts.
The key point to note is that both parties must consent to a
change in the property orders. If the other party will not consent
your only option is to bring an Application in the Family Court to
set aside the Final Orders. This is not easy to do, as there are
very limited circumstances in which Final Orders will be set aside
by the Court. In brief, section 79A(1) of the Family Law
Act (equivalent section 205ZH(1) of the Family Court
Act WA) provides that the Court can set aside Final Orders if
it 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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