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27 Sep 2016

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.  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 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:

  1. 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
  2. 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
  3. 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
  4. 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.

This is only general information and does not constitute specific legal advice.  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.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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