22 Jan Can my property orders be changed?
Having orders made by the Federal Circuit and Family Court of Australia, is generally the most favorable approach for parties going through a separation and wishing to settle their property affairs, as they are binding on the parties and typically difficult to set aside or vary in the absence of an agreement. This is because the Court favors a ‘clean break’ where orders are final, and the parties can move on and continue their lives following the separation. But what happens when one party has agreed to orders, and subsequently changes their mind? Can property orders be changed?
The simplest way to have Court orders changed is by the consent of both parties. In this case, the parties will enter into a new set of agreed orders which will effectively discharge the previous orders.
However, in a property settlement, it is not always the case that parties can come to an agreement, particularly where the agreement is to vary orders that have already been set. In the absence of an agreement to vary orders, s 79A of the Family Law Act sets out the circumstances in which the Court may set aside property orders.
• Where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence, or any other circumstance; or
• Since the order was made it is impracticable for the order or 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, as a result of that default, it is just and equitable to vary the order or set aside and make another order; or
• In exceptional circumstances relating to the care, welfare and development of a child of the marriage, the party caring for the child will suffer hardship if the order is not varied or set aside; or
• A proceeds of crime order has been made covering property of the parties to the marriage or against a party to the marriage.
Therefore, it is difficult to set aside property orders due to the limited circumstances set out above in which the court may be persuaded to vary or set aside property orders. The Court will not simply change property orders because one party has changed their mind and rather must be satisfied that one of the circumstances under s 79A exists.
This demonstrates the importance of receiving legal advice during a property settlement to understand your rights and entitlements prior to applying for Court orders, as once orders have been made, they are difficult to change.
Has this article prompted questions for you about your upcoming Court orders and property settlement? If you would like to discuss your Family Law matter this with our experienced Family Law Team please contact Solari & Stock Lawyers on 8525 2700 or click here to request an appointment.