Loading...

How Final is Final? Varying and Setting Aside Court Orders

8 June 2010

The Family Law Act provides limited scope for a ‘Final’ Court Order for Property Settlement, to be re-opened. This includes Orders that are made by Consent (between spouses) or Orders made by a Judge.

A person affected by a Court Order which alters their property rights has the standing to make an application to the Court for a variation or to set it aside. The request has to come under one (or more) of the following reasons, i.e.:

  1. By consent between the parties, expressed or implied;
  2. If there has been a miscarriage of justice;
  3. If circumstances have arisen which make the Order or part there of impractical to carry out;
  4. A person has defaulted in carrying out an obligation and as a result of the default, it is just and equitable to vary or set aside the Order;
  5. Where circumstances of an exceptional nature have arisen relating to the care, welfare and development of a child of the marriage or where the applicant will suffer hardship;
  6. A proceeds of crime Order has been made affecting the property to be distributed.

The Court holds to the idea that a Final Court Order, is just that ‘Final’ and is therefore generally reluctant to easily entertain Applications to ‘set aside’.

A common example of ‘implied consent’, which may give rise to the setting aside of an Order, are in circumstances where parties may have separated, entered into Consent Orders which alter their property, and then reconcile for a period of time and re-mingle their property and ultimately separate again. In this case, what can often happen is that one party may seek to revert to the original property Orders.

A ‘miscarriage of justice’ by reason of fraud, duress, the suppression of evidence, the giving of false evidence or any other circumstance which causes the miscarriage can also re-open a property Order. One important issue that should not be overlooked by parties and their legal advisors is the requirement for ‘full and frank disclosure’ of all assets and liabilities. Failure to give full and frank disclosure of property and finances, whether deliberate or not, may have serious implications and can give one party (who later discovers the deception) the ‘tool’ to re-open a Court Order.

In relying on a ‘miscarriage of justice’ to re-open a property Order, a party should be aware that it is a two-limbed process. A Court may decide that there was a miscarriage of justice but they must also be minded to exercise their discretion to vary or set aside the Court Order. In exercising their discretion they will give consideration to the passage of time and the end result. So that if a person waits many years before bringing an Application to the Court – to set aside – the Court may not be minded to grant the relief sought even though the Court may acknowledge that there was a miscarriage of justice. The same can be said for the end result. A Court again may consider that there was a miscarriage of justice but if the result of the miscarriage would have been the same or much the same, the Court is unlikely to exercise its discretion to vary or set aside the Order.

Setting aside or varying an Order due to its being impractical, also requires careful scrutiny. In circumstances where one party goes bankrupt before paying out the other party does not give rise to it being impractical. It is unfortunate but in this situation the aggrieved party would be subject to the bankruptcy provisions and be treated as if they were a creditor. In circumstances where a house and land was to be transferred and the house was burnt down (devaluing the property) this may amount to the Order being impracticable.

It is important however, that parties do not fall into the trap of utilising these provisions incorrectly. These provisions of the Family Law Act are not a substitute for the Appeal process. It also should not be used where a correction could be made under the “slip rule” or by seeking “machinery-type” provisions. The “slip rule” is used to correct simple errors such as, typos and computing errors. “Machinery type” provisions are used to clarify ambiguous Orders.

We recommend that you seek legal advice before commencing an Application to vary or set-aside a Court Order.

2021-11-05T14:57:48+10:00

Client Testimonials

I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton
Your team is professional, warm, friendly and real.
N.R., Crows Nest
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island
Your newsletters are great, I appreciate them.
K.B., Carina
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane

I was always confident that I was getting the very best advice.

T.S., Flinders
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton

You, guys, provide extraordinary service.

A.O., North Brisbane
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield