• Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Phone: 3465 9332

Logo
  • Home
  • Our Team
    • Courtney Barton – Legal Practice Director
    • George Finn – Practice Manager
    • Chris Colwill – Partner
    • Elizabeth McAulay – Senior Associate
    • Rachel Elaurant – Solicitor & Support Team Leader
    • Shinai Fisher – Solicitor
    • Shania Fernandes – Solicitor
    • Jessica Beath – Paralegal
    • Chloe Absalom – Law Clerk
    • Cailey Brazel – Legal Assistant
    • Emily Smith – Legal Assistant
    • Megan Peace – Senior Associate
  • Family Law Services
    • Divorce Property Settlement Lawyer Brisbane
    • Spousal Maintenance Lawyers
    • Superannuation Splitting & Advice Lawyers
    • Child Custody Lawyer Brisbane
    • Child Support Lawyer
    • Child Relocation Family Lawyers
    • Child Abduction Family Lawyers
    • Fixed Fee Consent Order Brisbane
    • Binding Financial Agreements
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Family Court Process
    • Family Mediation
  • Our Story
  • Fixed Fees
  • Common questions
    • Things to know before you separate
      • Separation Advice: Things to do before separation
      • What to do and what not to do before you separate
    • Things you need to know following separation
      • What is my partner entitled to if we split?
      • Separation vs Divorce – what is the difference?
      • Protect your assets and your family after separation
      • The Family Court Mediation Process Explained
      • Understanding the Difference Between Separation and Divorce
      • 6 things you MUST know before hiring a family lawyer
      • Top 10 Myths in family Law Finally Exposed
      • Honesty is the best policy – Why tell your divorce lawyer everything
      • Top 15 things people do wrong in a property dispute
      • Time Limits in Property Settlement
      • Family Court Process
      • Why you should formalise your property settlement
      • Fixed Fee Consent Order Brisbane
      • Duty of Disclosure
      • Beware: failure to disclose may derail your consent order
      • Can the court order someone to leave a house? – Ouster Orders
      • Who stays in the home after separation?
      • Property Acquired after Separation – how is it treated?
      • Post Separation contributions
      • Finally revealed: Top 10 things people do wrong in child custody matters
      • COSTS ORDERS
      • Going back to work after Divorce
      • Beware the criminal consequences of false allegations of sexual abuse
      • Divorce – What you need to know
      • Petrie Family Law Expert speaks about ‘The Twelve year Itch’
    • Spousal Maintenance
      • Spousal Maintenance Lawyers
      • Calculating Spousal Maintenance
      • Spousal Maintenance – Do I have to support my ex after divorce?
      • Bodilly & Hand: Spousal Maintenance ordered 17 years after separation
    • Parenting / Child Custody
      • The Ins and Outs of Shared Custody Arrangements
      • How Domestic Violence affects Parental Responsibility
      • What is sole parental responsibility?
      • What does Equal Shared Parental Responsibility mean?
      • How does a DVO affect parenting orders?
      • I want sole custody of my child
      • Do you want sole Custody? Here’s what NOT to do.
      • Most Common Child Custody Arrangements
      • Drug use in family law explained
      • Interim Parenting Orders
      • How to deal with false allegations in family law
      • What is substantial and significant time?
      • Am I a parent?
      • Court Ordered Paternity Test – What, Why and How
      • My ex is in contravention of a Parenting Order. What can I do?
      • Gay Couple Win Appeal on sperm donor ‘parent’
      • How to spend more time with your children
      • Parental Alienation in Family Court Disputes – Part 1
      • Parental Alienation in Family Court Disputes: Part 2
      • Im not a parent. Can I apply for a parenting order? Non-Parent Parenting orders explained.
      • Can Parenting Orders be changed?
      • When are a child’s views given weight by a Court?
      • What age can a child decide where they live?
      • Application to change parenting orders because of children’s changed views dismissed
      • When can you change your child’s surname?
      • Courtney’s Cases: Interim Orders appealed as Judge avoids determining issues
    • Hague Convention & International Child Abduction
      • Child Abduction Family Lawyers
      • Courts to consider family violence in Hague Convention cases
      • Rights to return of your child if taken to a Non-Hague Convention country
    • Relocation of children & Prevention
      • Child Abduction Family Lawyers
      • Child Relocation Family Lawyers
      • Unilateral relocation of children
      • Prevention is better than Cure – Interim Relocation of Children Cases
      • International Travel with Children After Separation
      • Airport Watch List Orders / Pace Alert Orders
      • Relocation – Full Court confirms decision allowing ADF Mother a ‘blank cheque’ relocation to wherever posted in her employment
    • Protecting Assets
      • Can a discretionary trust protect my assets in a divorce?
      • 10 tips to Protect your Assets in a de facto relationship
      • How to uncover hidden assets to stop your ex reducing your entitlements
      • Injunction to stop my ex selling assets
      • Protect your assets and your family after separation
      • My ex is selling assets. What can I do??
      • Superannuation Splitting & Advice Lawyers
      • What is a Superannuation Payment Flag?
      • Dunworth & Faletti: Application for injunction to stop sale of property where jurisdiction not yet established
    • De Facto relationships
      • Am I in a De Facto Relationship?
      • Breakdown of a De Facto Relationship – Fairbairn v Radecki
      • Are contributions made prior to a de facto relationship considered?
      • Disclosure where jurisdiction is in issue
    • overseas orders
      • Impact of overseas divorce on Australian property settlement
      • Validity of Overseas Orders – Parenting, Marriage and Divorce Orders
      • Clayton & Bant – A multi-jurisdictional family law dispute
    • Property & Financial Settlement
      • Divorce Property Settlement Lawyer Brisbane
      • How does the property settlement process work?
      • Initial Contributions Count – 8 years + 1 child = 78%/82% to Husband
      • My Parents lent me money. Is it treated as a gift or a loan?
      • Post Separation contributions
      • Difference between property and a financial resource in family law
      • Assessing initial contributions in a long relationship
      • The Alter Ego Principle – When a Spouse uses a trust to hide assets
      • CGT rollover for marriage breakdowns – Ellison & Sandini Explained
      • How Trusts are dealt with in a Property Settlement
      • Pet Custody – Who gets the dog in a divorce?
      • Redundancy payment – how is it treated?
      • Future inheritances – when can they be taken into account?
      • What is just and equitable?
      • Is Domestic Violence Relevant in a Property Settlement?
      • Varying property orders
      • Defaulting on Property Orders is Dangerous
      • Effect of Bankruptcy on property settlement
      • Courtney’s Cases: Centrelink fraud or a fraudulent representation to the Court?
      • Limitation periods against solicitors for defective Financial Agreements
      • Court dismisses application for property settlement for same sex couple of 27 years
    • Binding Financial Agreements
      • Binding Financial Agreements
      • Is my Binding Financial Agreement Binding?
      • Does your Financial Agreement Protect you from a maintenance claim?
      • Financial Agreements & Spousal Maintenance & Income tested benefits
      • Superannuation Splitting in Financial Agreements
      • SETTING ASIDE A BINDING FINANCIAL AGREEMENT
    • Child Support
      • Child Support Lawyer
      • Does Child Support change if you get married? Child Support FAQs
      • I want to end a Binding Child Support Agreement
      • I want to challenge my child support assessment
    • Mediation Exemptions
      • Mediation
      • Can I go to court without doing mediation first?
      • Do I have to mediate before court? The exemptions Explained
      • NEWS ALERT – You do NOT need a s60I certificate to file your parenting application – Valack & Valack
    • Domestic Violence
      • Coercive Control finally criminalised in Queensland
      • Domestic Violence Lawyer – DVO – Domestic Violence Order
      • Common mistakes made in an application for a domestic violence order
      • Do’s and Don’ts when applying for a DVO to succeed
      • Is withholding a child domestic violence?
    • Narcissistic Abuse
      • Your Legal Guide to Divorcing a Narcissist – Narcissistic Abuse Explained
      • Top 10 Warning Signs of Narcissistic Abuse revealed
      • When is supervised time ordered? Is Narcissistic Abuse enough?
    • Unacceptable Risk
      • Child Custody and Mental Illness
      • What is unacceptable risk & when will a Court change residence?
      • Mother’s persistent accusation that the Father sexually abused their child results in orders for no time with the Mother
      • Change in residence for children because of Mother’s inability to protect the children from harm
    • Evidence in parenting proceedings
      • Admissibility of opinion evidence & expert evidence in family law matters
      • Recordings as evidence in Family Court
      • Admissibility of admissions at mediation in court proceedings
    • Covid-19
      • The Covid-19 Vaccination – Is mutual parental consent required?
      • I want to apply to the Family Court for inclusion in the Covid-19 List
    • Other Legal
      • NEWSFLASH – What are the New Family Law Rules?
      • Out With the Old, In With the New: Why Fixed Fees are better
      • Apprehended Bias – should Judges & lawyers have drinks pre-judgement?
      • Review of the Family Law System
      • Inquest of Jack & Jennifer Edwards – Lessons Learned
      • WARNING PRACTITIONERS: New Family Law Rules from 1 March 2018
    • Registrar’s decisions
      • Reviewing a Registrar’s decision
  • Family Law Videos
  • Family Mediation
  • Success Stories
  • Narcissistic Abuse
  • Contact Us

Varying property orders

April 27, 2018

Can I vary final property orders?

When a person comes to see us during their first meeting and we ask “why are you here?” the most common answer is “I want to get on with my life” and their priorities are “finality” of the matter and “certainty”  about their future. Varying property orders after they are made final is certainly not something they contemplate.

But what happens if: varying property orders

  • A party is dishonest and fails to tell the other party about assets and information that were relevant and significant to the outcome of the matter?
  • Circumstances have arisen since the making of the orders that make it no longer practical to carry out the agreement reached?
  • A party defaults in carrying out an obligation pursuant to a final property order?
  • Exceptional circumstances have arisen since the making of the order, with respect to a child of the relationship, such that the party caring for the child will suffer hardship if the agreement is not varied?

In these circumstances it is possible for the agreement to be varied or set aside so that the disadvantaged party can re-open all or part of the property settlement, pursuant to section 79A Family Law Act 1975.

If you are defaulting on property orders, you are at risk of an application by the disadvantaged party to set aside the orders and replace them with new orders more favourable to them, and you may be required to pay your ex’s legal costs of the application if you are found to have defaulted on the property orders without a good reason.

Varying Property Orders – Theoretical Case Study

Say Mr and Mrs Smith entered into final property Orders on 1 February 2018. Those orders provide, among other things, for Mrs Smith to act as agent to sell shares in a company XYZ Electronics, controlled by Mr Smith, and to be exclusively entitled to the profits of sale of those shares, or otherwise, in the absence of sale, that Mrs Smith be at liberty to transfer those shares into her sole name. At the time of the orders being made, those shares were understood by both parties to be valued at approximately $200,000.

A few months after the Orders are made, Mr Smith sells 98% of his shares in the company XYZ Electronics to ABC Electrical Services and XYZ Electronics. Mr Smith remains a shareholder of XYZ Electronics but the value of Mr Smith’s shares in XYZ Electronics is reduced to $4,000.

The original orders provided that Mr Smith was prohibited from dealing with his shares in XYZ Electronics in such a way that would diminish the value of those shares.

As a result, Ms Smith will receive $196,000 less than what she was entitled to pursuant to the property Orders entered into on 1 February 2018.

Ms Smith has the right to file an application seeking a variation to the original orders to reflect the diminution of the value of the shares under section s79A(b) and (c) given the change in the nature of the property subject to the original orders.

In order for Mrs Smith to be successful in her application to vary the original orders she would need to prove to the Court that (a) Mr Smith has defaulted in carrying out an obligation imposed upon him by the original orders and (b) in the circumstances that have arisen as a result of Mr Smith’s default, it is just and equitable to vary the original order and make a new order.

Mrs Smith would need to provide evidence to the Court that the shares in Mr Smith’s name have diminished in value as a result of Mr Smith’s conduct in selling 98% of those shares.

If Mrs Smith is able to produce such evidence, it is likely she would be successful in her application to vary the original orders and a Court would find as follows:

  • After final property orders were made, Mr Smith sold 98% of his shares in XYZ Electonics;
  • Mr Smith has defaulted in carrying out an obligation pursuant to the original orders, that he not deal with his interest in XYZ Electronics;
  • As a result of Mr Smith’s conduct and through no fault of Mrs Smith, the value of the shares held in XYZ Electronics has been diminished;
  • It is just and equitable in the circumstances for the court to vary the original orders so as to remedy that situation and avoid a miscarriage of justice to Mrs Smith.

The precise variation of the orders would depend on all the circumstances of the case.

Varying Property Orders – Real Case Study: Gaudry & Gaudry [2004] FMCA fam 452

In Gaudry and Gaudry, the Wife filed an application seeking to set aside an earlier property order made in August 2002, where the Husband had demolished a residence on the property to be sold after the orders had been made, the effect of which being that the property had reduced in value by $35,000.

Federal Magistrate Scarlett found that the evidence established that the residence on the property had been demolished at the instigation of the Husband and as a consequence, the property had decreased in value from $110,000 to $75,000, to the detriment of the Wife.

The Court accordingly varied the original orders pursuant to section 79A Family Law Act 1975 so that when the property was sold a figure equivalent to 60% of the lost $35,000 was paid to the Wife prior to the remainder being distributed pursuant to the original orders.

Moral of the story – Varying property orders is possible where the other party is in default

Petrie Family Law expert Courtney Barton of Barton Family Lawyers says:

“It is regrettably a common scenario that we see parties defaulting on property orders. If you foreshadow difficulties complying with your property order you should seek an urgent extension of time to comply to avoid further litigation and legal fees. Otherwise, you may find yourself the respondent in an application for enforcement of, or setting aside of those orders. You may also be at risk of having to pay the legal costs of the other party’s application, particularly if you do not urgently remedy your default. If you are disadvantaged as a result of your ex partner defaulting on property orders you should seek urgent legal advice with respect to enforcement or a variation of those orders, to secure the amount to which you were originally entitled to. ”

If you are in need of advice to formalise your property settlement or advice with respect to a party defaulting on property orders, please contact us today to book a reduced rate initial consultation with one of our Brisbane family law experts  to have a confidential discussion about your individual circumstances and you will receive tailored advice and a strategic plan which will save you money and financial stress.

For more information on defaulting on property orders read our article ‘Defaulting on Property Orders is Dangerous.’ 

 

 

 

 

Commonly Asked Questions, Property

Barton Family Law

Primary Sidebar

Online Enquiry

    Footer

    Areas of Practice

    • Child Custody Lawyer Brisbane
    • Divorce Property Settlement Lawyer Brisbane
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Superannuation Splitting & Advice Lawyers
    • Fixed Fee Consent Order Lawyers
    • Family Mediation Representation
    • Child Relocation Lawyers
    • Child Abduction Lawyers
    • Child Support Lawyer
    • Spousal Maintenance Lawyers
    • Family Court Process
    • Family Mediation
    • Binding Financial Agreement Lawyers

    What makes us different from other Law Firms?

    Our Brisbane Divorce & Family Lawyers:

    Only do family law all day every day. That makes us really good at what we do.

    Are dedicated to helping you work through your family law issues so you can have a fresh start.

    Have your best interests at heart.

    Have the knowledge and experience to solve your family law problems, no matter how complex.

    Will help you to reduce the conflict with your former partner.

    Will fight for you and your children.

    Provide exceptional quality service to you, tailored to your individual case needs.

    Will educate you about your options, the steps you need to take and we will develop a strategy to help you to achieve a fair outcome and the best practical outcome for you and your family.

    Will provide you with practical, realistic, commercial and strategic advice to empower you to make smart decisions following separation that will save you time, money and stress.

    Will deliver an outcome to you quickly and cost effectively, with fixed fees for certainty.

    Will do everything within our legal power to get you the best outcome for you and your family.

    Are with you, supporting you, every step of the way from negotiations, to mediation, to litigation and settlement.

    Individual liability limited by a scheme approved under professional standards legislation.

    Contact Us

    Petrie Office

    Address: 4/996 Anzac Avenue, Petrie QLD 4502

    Parking: Underground parking available at the back of the building via O’Loan Street

    Phone: 3465 9332

    Website: Petrie Family Lawyers

    Chermside Office

    Address: 822 Gympie Road, Chermside QLD 4032

    Parking: Across the road at Chermside Shopping Centre

    Phone: 3465 9332

    Website: Chermside Family Lawyers

    Barton Family Lawyers Logo

    Copyright | Disclaimer | Terms of Use | Privacy

    Call Us
    Book a Consultation
    Copyright © 2023 | Website hosted by Lift Legal Marketing