Family law property orders are intended to be final, reflecting the “clean break” principle that allows former spouses or de facto partners to move forward with financial certainty. However, in limited and specific circumstances, the Court may consider varying or setting aside such orders.
Legal Framework
Under the Family Law Act 1975, section 79A, for married couples, and section 90SN, for de facto couples, the Court is empowered to vary or set aside final property orders. The Court follows a two-step procedure:
- Determine whether a ground to vary or set aside the order exists; and
- Decide whether it is proper to exercise its discretion in the circumstances.
Grounds for Varying or Setting Aside Final Property Orders
1. Miscarriage of Justice
A final property order may be set aside if it was obtained through:
- Non-disclosure of material financial information or asset(s);
- Fraud, duress, coercion, or the presentation of false evidence; or
- Any other circumstance that prevented a fair hearing.
It should be noted that the key consideration is whether the withheld or false information would have changed the outcome. If not, the Court is unlikely to change the original orders.
2. Impracticability
If carrying out the orders becomes genuinely impossible (as opposed to merely inconvenient), the Court may vary them. For instance, if a property that was to be transferred has been destroyed or if third-party cooperation critical to the implementation of the order cannot be obtained.
3. Default in Compliance
The Court may intervene if one party fails to comply with the terms of the orders, and that failure makes it just and equitable to vary or set them aside. This is often to prevent the defaulting party from benefiting from their non-compliance.
4. Exceptional Child-Related Circumstances
Final orders may be varied if:
- Exceptional circumstances have arisen since the orders were made;
- These exceptional circumstances relate to a child’s care, welfare or development; and
- The child or the parent with primary care would suffer hardship if the final orders remain unchanged.
5. Proceeds of Crime
The Court may vary or set aside the final orders if the property subject to the final orders is later the subject of proceeds of crime order.
6. Consent of All Parties
If all parties agree, the Court may vary or set aside the orders by consent. While the Court retains ultimate discretion, an agreement between the parties will significantly streamline the process.
Practical Considerations
- A party applying to vary or set aside final property orders must provide compelling and credible evidence to justify the application.
- Minor changes in circumstances or dissatisfaction with past decisions are not sufficient. The Courts are clear that the mere passage of time or “buyer’s remorse” will not meet the high threshold required.
Final Thoughts
The Courts place strong emphasis on finality in property matters to uphold the clean break principle. While there are recognised exceptions, the power to revisit final property orders is reserved for cases involving serious injustice or significantly changed circumstances, not for tactical re-litigation or regret.
If you believe that your situation deserves an application to vary or set aside a final property order, it is imperative to seek timely legal advice. An experienced legal practitioner can assess your circumstances and advise on the strength of your position.
