Can You Vary Property Settlement Orders

I'm not happy with the property settlement orders that were made between my former spouse and I previously - what can I do about it?

As family lawyers, we sometimes receive enquiries from people who have already formalised their property settlement with their former spouse by way of Court Orders however, for various reasons, they are no longer happy with those orders and want to know if there is anything they can do to essentially “re-open” the matter.

Circumstances where you may apply to set aside an order

It is important to understand that there are only very narrow grounds (or reasons) to re-open your property settlement if you have already finalised things properly. You cannot simply decide that you are unhappy with what you may have consented to some time ago to warrant Court Orders being set aside.  Section 79A of the Family Law Act 1975 sets out the very limited circumstances where a party who was married, but is now separated from their former spouse, may apply to the Court to set aside final Court Orders and make new Court Orders. These are commonly referred to as “Section 79A applications”. These circumstances include:-

1. Where both parties consent to the orders being set aside;
2. Where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information); or
3. Where circumstances have arisen since the order was made whereby it is impracticable for the whole or part of the order to be carried out; or
4. Where, 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.

There are similar provisions for a party who was in a de facto relationship and wishes to set aside their Court Orders at section 90SN of the Family Law Act 1975.

Many Section 79A applications are not successful. The threshold to satisfy one of the Section 79A grounds is challenging.  The Court must:-

1. Firstly, determine whether the person making the application has sufficient grounds;
2. Secondly, be satisfied that grounds amount to a miscarriage of justice that warrant the Court setting aside the original Orders;
3. Thirdly, be satisfied that the Court should exercise its discretion and re-hear the matter; and
4. If so, consider what further Orders should be made.

Costs consequences if you aren't successful

If the Court is not satisfied that there are sufficient grounds, then the application will be dismissed by the Court. There are significant costs consequences for the party who brings an unsuccessful application which means that the party may have to pay some, or all, of the other party’s legal costs in having to defend the application.

If you are contemplating making a court application to set aside your property settlement orders, you are strongly encouraged to obtain legal advice to ensure that you have sufficient grounds to do so prior to filing your court application.  Contact our office to make an appointment with one of our solicitors to obtain advice on your situation on (07) 4963 2000 or through our online contact form below.