Property settlements and Consent Orders

Most agreed property settlements are documented in the form of Consent Orders which are considered final. Consent Orders set out how parties have agreed how their assets and liabilities will be divided between the parties. Generally parties get one shot at making sure they are satisfied with the terms of the property agreement they are signing off on. While it is not imperative that parties obtain legal advice before signing any agreement, it certainly is recommended.

Once a Consent Order has been approved it becomes a final property settlement and can only be set aside in two ways:

1. By consent. If both parties agree that the previous orders should be set aside then they can draft new consent orders reflecting the new agreement.
2. The second way to re-open a property settlement matter is to make a “section 79A Application” to the Court*. Section 79A of the Family Law Act 1975 (Cth) (Act) sets out on what basis the Family Court is able to set aside a final property settlement order. Section 79A of the Act is a remedial section which allows the court in certain circumstances to overturn an order made by the court pursuant to section 79 of the Act. Therefore this section only applies to property orders.

Note

Parenting orders are not treated the same way as property orders. This is often the case when younger children are involved. Parenting orders can change over time as what is suitable for a young child will not necessarily be appropriate for an older child or a teenager. You must demonstrate to the Court that there has been a “material change in circumstances” to warrant the changing of orders. Mediation and negotiation should be considered as a first option and if the parties agree then a new Consent Orders can be entered into. If this does not work then a party may need to file a fresh application at the Family Court. 

Lavan Legal comment

Running a section 79A Application can be very expensive. Any person considering going down the path of re-opening a property settlement should seek family law advice first. Failure to do so could result in the application failing with potential severe cost ramifications for the applicant.

*The equivalent section for de facto couples is section 205ZH of the Family Court Act 1997.

Written by Catriona Kilgallon.