Once Orders are made, either by the Court or the consent of the parties, they are final in relation to property settlement. Once made, Orders made only be varied if either the parties consent or the Court determines that it is appropriate to change the Orders.
It is not always necessary to change Orders. For example, in circumstances where the Orders provide for one party to make a payment to the other party within 28 days, however the paying party requires more time to make the payment, parties can agree to an extension of time.
Usually a formal variation of Orders is only required where there is a high level of distrust between parties, a history of non-compliance by one party or the changes sought are substantial.
Changing Orders by Consent
If a party is seeking to change Orders, it is always beneficial to try and negotiate the changes sought. Resolution of matters through litigation can take between 12 and 18 months and cost anywhere between $20,000 and $200,000. By engaging in negotiations parties are often able to achieve an agreement in less time and without incurring significant legal fees.
Changing Orders by Application to the Court
If parties are unable to achieve an agreement the party seeking to vary the Orders will need to file an Application with the Court to set aside or vary the Final Orders.
There are only very limited circumstances in which Final Orders will be set aside by the Court. These circumstances are set out in section 79A of the Family Law Act. Pursuant to s79A (1) 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 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;
Parties should also be aware that even if the Court is satisfied that one or more of the grounds contained in section 79A are made out; the Court has discretion as to whether or not to grant the application. The Court may also set aside Orders where parties have provided express or implied consent to set aside or vary the Order.
If you are seeking to vary your property settlement Orders, have been contacted by your former partner in relation to the same, or have questions/ need advice in relation to property settlement matters please contact the Family Law team.