Varying Property Orders
Normally, once a property order has been made by the court, it is final. Lawyers should advise their clients at the outset that only a single attempt is permitted to make these orders.
An application can be made to alter the property order if there has been any material change in the situation or going through with the order is no longer practical. These alterations can take place by more consent orders; however, it is essential to include affidavits from at least one of the parties detailing the material alteration to circumstances that has caused the change e.g. when a party was to discharge a mortgage and the loan company refuses to offer a refinancing of the mortgage.
This is a risky thing to do as the other party could seek an enforcement of the order and not agree with the change. Lawyers should always inform their clients that property orders are final.
Section 79A application
Using a 79A application (Family Law Act 1975) a property order can be changed if one of the parties has not disclosed liabilities or assets, fraud has taken place or duress has been applied by one of the parties when getting the orders. 79A applications are not commonplace and the lawyer should not suggest this action unless it is really appropriate.
A s. 79A application can be lodged as a way of varying the property order in question or to put the property order on the side and find seek a different dividing up of assets. The judge will use the normal s. 79 4-step method when assessing the assets and liabilities and may well go back over the property order even if the application may have only been aimed at varying a small part of it..
An additional method of altering the property order is through the use of the slip rule. This may be used in certain circumstances specifically when an error has been made in the orders and the two parties both acknowledge the error and the orders do not reflect the parties and judge’s intentions, e.g. if the date was inappropriate and the order cannot be enforced or the name of the person who is to transfer the property is incorrect.
Varying Parenting Orders
Parenting orders are not treated in the same way as property orders. This is often the case when younger children may be involved. Lawyers should inform their clients that parenting orders can change over time particularly as children grow up or the circumstances of the parties change.
Making changes to parenting orders is not a lot different from the making of a parenting order in the first place. Mediation should be considered between the parties but if lawyers have been undertaking the work then new consent orders could be negotiated but if this is not fruitful then filing an application to the Family Court or Federal Magistrates Court would be a better way to reach a solution.
If changes are being requested to a recently approved parenting order then the party requesting the change must provide evidence that the circumstances affecting the child necessitates making a change to the parenting order. This could be that one of the parents is changing his or her location or where there is evidence of family violence or the child’s needs have changed such as the onset of illness.
Section 79A of the Family Law Act 1975 permits the court, in specific circumstances, to terminate any orders made by the court in relation to property alone. Any person that is affected by an order made using Section 79A may submit an application to have that order revoked or changed. The court could make another order under s. 79 as a replacement for an order it has revoked.
Before the court makes any orders that are pursuant to Section 79A it has to be satisfied that the circumstances are related to one out of four situations.
- Miscarriage of Justice
- Four steps are used when determining miscarriage of justice.
- Were there any circumstances that involved any of the following?
- the suppression of evidence
- the provision of false evidence
If there was. is this considered a miscarriage of justice? Should the court then revoke the order, vary it or make another order?
Failure to disclose financial matters has an influence on the court’s decision.
Miscarriage of justice in relation to consent
Property orders that were made through consent do not stop an application under Section79A. A miscarriage of justice can take place in relation to a consent order when the consent has taken place through the providing of misleading or insufficient information
What is fraud?
Fraud under Section 79A, even though not clearly defined, is a wrongdoing that the party was conscious of performing.
What amounts to duress?
This can be any unlawful threat, but there is no fixed definition of duress under Section 79A.
Suppression of evidence
Failing to provide a complete and honest disclosure of financial circumstances to the court and to the other involved party could be considered suppression of evidence.
The giving of false evidence
When false information is provided when an order is made then this can be challenged.
Impracticable for the order to be carried out: s. 79A (1)(b)
In this situation proving that it is impracticable to carry out an order is not just that circumstances have arisen since the making of the order that makes the order unjust if carried out but also the impractibility of carrying out the order could not have been predicted.
New circumstances of an exceptional nature relating to the care, welfare and development of a child
Under Section 79A (1)(d)FLA provision is made in relation to the development, welfare and care of the children in when it comes to property orders, e.g. if a child becomes seriously ill and current property orders prevent the accessing of funds to make adaptations to the home.
Failure of a husband to keep up child maintenance payments can be an exceptional circumstance. The court decides what exceptional circumstances warrant changing a property order.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.