Where final property orders have been made in the Family Court or Federal Circuit court, there are very limited circumstances where they can be varied or set aside.
These circumstances are:
- Where the parties provide express or implied consent to set aside or vary the Order
- Where there has been a miscarriage of justice
- Due to the circumstances that have arisen since the Orders were made, it is impracticable for the Order (or part of the Order) to be carried out
- A party has defaulted in carrying out their obligation under an Order and it is just and equitable to vary or set aside the order
- Proceeds of crime order has been made covering property of the marriage
- In circumstances of an exceptional nature, relating to the care, welfare and development of the child of the relationship
Parties can expressly agree to vary or set aside final property orders. There can also be implied consent, for example where parties obtain final property orders and subsequently reconcile for a significant period of time during which they merge their finances. In that case, a court may find that there has been implied consent to set aside or vary the final property orders.
The court has the power to vary or set aside an order when there has been a miscarriage of justice by reason of fraud, duress, suspension of evidence, the giving of false evidence or any other circumstance. The court must be satisfied that there has not only been a miscarriage of justice but also that it is appropriate to vary or set aside the order. For example there may be a miscarriage of justice because someone has suppressed evidence such as the existence of funds in a bank account, however it may not consider it appropriate to vary or set aside the order because, even if the existence of the funds had been disclosed, this may not have changed the outcome of the case.
If a party defaults on an obligation under an order, for example an obligation to transfer a property to the other party, a court may consider that it is just and equitable to vary or set aside the order.
A court may vary or set aside orders where exceptional circumstances have arisen after the making of the order relating to the care, welfare and development of a child of the marriage and the child or the applicant who has caring responsibility for the child would suffer hardship if the order was not varied/set aside.
Parties considering obtaining consent orders to formalise a property settlement, should do so on the basis that such orders are final and cannot be varied or set aside, due to the very limited circumstances under which such orders can later be varied/set aside. Those parties considering making an application to vary or set aside a property order are advised to seek advice from an experienced family lawyer about the likelihood that their application will be successful.
