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Property Orders – Are they really final?

Property Orders – Are they really final?

Posted On: 4 April

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When the Family Court or Federal Circuit Court refer to property settlement orders as being ‘Final Orders’, what does that mean? Final Orders have the effect of finalising or concluding the financial relationship between parties to a marriage or de facto relationship.

Can a final court order be changed?

It is not uncommon for family lawyers to have enquiries about wanting to change property orders due to a change in circumstances since the Final Orders were made.

The key point to note when an enquiry of this type is received, is that both parties must consent to the change in the Final Orders.  If, despite all your efforts, the other party will not consent to such a change, your only option is to file an Application in either the Family Court or Federal Circuit Court to set aside the Orders.

However, before contemplating such an application, regard should be had to the limited factors within section 79A(1) upon which the Court will consider when asked to set aside or vary a Final order.

Courts may ‘set aside final orders’

Section 79A(1) 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 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;

Example property order [case study]

In the recent case of Waterman v Waterman [2017] FamCAFC 23 (8 February 2017) the Full Court heard the wife’s appeal against the dismissal of her Section 79A application.

The facts:

  • The parties were in a relationship that spanned almost 30 years
  • The parties commence cohabitation in 1983 and married in 1991
  • First separation occurred in September 1998
  • The parties have two children who were at the time of the first separation, 7 and 4 years of age
  • The parties reconciled in November 1999
  • The parties second separation occurred in early 2012
  • Within 3 months of the parties’ first separation, orders were made by consent in respect of both parenting issues and property settlement. The orders provided that the former matrimonial home be sold and the net proceeds be divided equally.

Murphy J addressed the fact that section 79A(a)(a) makes it clear that the specified ground of the suppression of evidence includes the failure to disclosure relevant information.

In the case of Waterman it was found that there was no discussion between the parties about the husband’s (or the parties’) financial affairs in a way that could have disclosed to the wife the nature and extent of his financial position.

There had not been any discussion about the actual terms of any proposed settlement or the parties’ entitlements in respect of those terms and how the terms might reflect a just and equitable outcome for the parties.

In addition, His Honour found that the wife did not receive her entitlement under the Final Orders and while this was not pleaded as a ground of relief, the amount received by the wife appeared to be slightly more than half of what she was actually entitled to.

The appeal was accepted and the Consent Order as made at the time of the parties first separation was set aside and the wife’s application for property settlement was listed for directions before another Judge of the Federal Circuit Court.

Seek family law advice

There is a high benchmark to be met before a party can attempt to reopen a final property settlement order.  Any person considering a section 79A application should seek family law advice, if only to ascertain the consequences of a failed application.

The successful respondent is likely to seek an order for the payment of costs if the application to set aside a Final Order fails.

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