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3 January 2018 I'm late complying with Family Court Orders, no one will mind

By Linda McGirr, Senior Associate

Not necessarily.

In a recent Family Law case the husband found out the hard way that he should not have delayed complying with Court Orders for his property settlement.

The case of Blackwell & Scott [2017] FAMCAFC 77 involved a couple who at the end of their 10 year de facto relationship agreed to a property settlement dividing their assets equally.

The Consent Orders required the husband to pay the wife the sum of $130,000 within 90 days and he was to retain an investment property.

The husband delayed the payment for 13 months. That was 2014 and 2015 in the hot Sydney property market. In that time the value of the investment property had increased so much that the sum of $130,000 no longer represented one half of the asset pool.

The wife brought proceedings to set aside the Consent Orders.  She took the position that the Consent Orders were negotiated on the basis that they effected an equal division between the parties of their assets.  With a payment to her of $130,000 even with interest, calculated at $12,000, she would no longer be receiving one half but significantly less.

She was successful at trial and the Full Court dismissed the husband's appeal.

The husband would no doubt have been regretting his delay because had he complied with the Court Orders promptly and not kept the wife waiting, the settlement would have been finalised and he would have been entitled to benefit from the increase in the property's value.

You need to be sure when reaching a property settlement that the timeframe for any payment is realistic and you have appropriate finance in place. It is important you comply with Court Orders at the times you agreed to. The consequences for breach of orders can be significant because you probably will not be able to bring the other party or the Court back to the original agreement after you have delayed.

Linda McGirr, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: lmm@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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