Yes, Consent Orders may be overturned in limited circumstances. Once terms have been formalised, the Family Court will only set them aside on the grounds of a miscarriage of justice, financial hardship, impracticality, child welfare concerns or defaulting.
After all, the purpose of Consent Orders is to make your agreement on asset division or childcare arrangements legally enforceable and followed into the future.
Property Orders aim to end the financial relationship between parties, while Parenting Orders strive to prevent future court proceedings – a stressful process that is not in the best interest of the child. As the Court seals such Orders, they can be very difficult to vary or overturn.
Not sure where to start?
Our family lawyers in Perth leverage decades of experience to support clients to move on after separation and divorce. Here, we explain when and how Consent Orders can be overturned. Keep reading to discover whether you may be in a position to set aside existing terms, and the most suitable approach for your situation.
What is a Consent Order?
The definition of a Consent Order is a written agreement between two parties about children, property or finances that is submitted to the Family Court to make it enforceable. Before approving your application, the Court will determine whether its terms are just, equitable, reasonably practical and, for Parenting Orders, in the child’s best interests.
Once the Court approves the terms, the Judge will issue the terms as final and legally binding Court Orders – that it is therefore reluctant to set aside or change.
When can Consent Orders be overturned?
The core purpose of Consent Orders is to settle disputes permanently, ensuring that no additional legal action is necessary. Consequently, altering or setting aside existing Orders can be difficult.
Section 79A(1)(a) of the Family Law Act 1975 (Cth) details the conditions under which an application to overturn Consent Orders may be made:
Miscarriage of justice
A miscarriage of justice occurs when an order is obtained through unfair means. During the application for a Consent Order, both parties must fully disclose their financial situations, swearing under oath that they have provided a complete and honest account of all assets and liabilities.
To determine whether a miscarriage of justice has taken place, the Court follows a structured four-step process:
- Identifying grounds: The Court first identifies whether any grounds such as fraud, duress, suppression of evidence, or false information have been established.
- Evaluating the impact: The Court then assesses whether these grounds have indeed led to a miscarriage of justice.
- Considering judicial discretion: The Court deliberates on whether it should exercise its discretion to modify or nullify the existing order.
- Deciding on a new Order: Finally, the Court determines whether a new order is necessary to correct the situation.
It’s important to note that the Court only considers circumstances that existed at or before the time the Order was made, not those that arose afterwards. The applicant bears the burden of proving that a miscarriage of justice has occurred and that the order should be reconsidered.
- In reaching a decision, the Court weighs several key considerations:
- Whether alternative solutions could resolve the issue without overturning the original Order.
- The public interest in ensuring that parties who create their financial difficulties are not allowed to relitigate their cases.
- The broader public interest and the necessity of maintaining finality in legal proceedings.
Hardship
Hardship can stem from a range of unforeseen situations, and there’s no strict list of what qualifies. The key is that the circumstances must be exceptional and not something that could have been reasonably predicted.
For instance, if a parent loses their job unexpectedly and the financial strain makes it impossible to meet the obligations set by the order, this might be considered grounds for modification.
The court requires a significant change in circumstances to be evident before even considering an application to adjust the order, ensuring that only substantial cases are brought forward.
Impracticality
The court will thoroughly evaluate any claims that an order has become impractical to enforce. Simply facing challenges in fulfilling the order isn’t sufficient.
For example, if a party experiences a significant loss of income after the order is made, this alone might not be considered impractical. However, if a business central to the order’s terms collapses or drastically declines in value, this could render the order impractical to enforce.
Defaulting
When a party defaults and seeks to have a Consent Order varied or overturned because they are unable to meet their obligations under its terms, it may be considered ‘just and equitable’ to set aside the existing order and establish a new one.
Child welfare
Circumstances may have changed since finalising the original Orders and be impacting a child’s care, welfare, and development. In this situation, the person responsible for the child may face hardship if the current Consent Orders aren’t overturned and a new arrangement put in place.
How to overturn Consent Orders
Consent Orders may be set aside either through mutual agreement between the parties involved or if all else fails, a court order.
Private agreement
The journey to overturn a Consent Order begins with open communication. Start by discussing the situation with the other party, aiming to reach a compromise that works for everyone involved.
If such an agreement proves challenging, mediation becomes the next step, offering a space to resolve differences before turning to legal avenues.
Should both parties find common ground, the next step is to request the court to officially set aside the consent order, ensuring the changes are legally recognised.
Court Order
If you simply cannot find common ground with your former partner to overturn a Consent Order, you can apply to the Family Court to intervene. However, the Court will only choose to overturn a Consent Order if the strict criteria explained above have been met.
An application to set aside the Consent Order can also be made by “a person affected by an order,” such as a creditor or bankruptcy trustee.
Importantly, these provisions aren’t intended for correcting minor mistakes like typos or calculation errors, which can be addressed through the “slip rule,” or for resolving ambiguities in the order, which may be handled through “machinery type” provisions.
Can Consent Orders made under duress be overturned?
While duress can be grounds for overturning Consent Orders, proving this undue influence can be challenging as it is an ‘act’ of pressure that is difficult to prove.
However, it is possible to establish duress in three ways:
- Direct circumstantial evidence: Duress can be established by presenting clear evidence of the specific conditions around the agreement in question. It’s worth noting that the pressure applied doesn’t need to be illegal to be deemed duress.
- Trust-based influence: In some relationships, the immense trust that one party places in another can lead to circumstances where undue influence is assumed, even without direct evidence of coercion.
- Presumed influence: Other relationships are inherently seen as vulnerable to undue influence. For instance, the bond between an elderly person and their caregiver is typically presumed to involve a higher risk of such influence.
Can Consent Orders be overturned if undisclosed assets are discovered?
If undisclosed assets are discovered, the party seeking to overturn a Consent Order must demonstrate that these hidden assets—whether they involve investments, real estate, or substantial bank accounts—are significant enough that enforcing the original Order would result in an unjust outcome.
However, reopening a consent order on these grounds can be difficult, particularly if the party did not thoroughly investigate the other party’s financial situation when they had the opportunity.
For instance, imagine one party disclosed having a small shareholding in a company but claimed it was of minimal value during the consent order negotiations. Later, it is revealed that this shareholding is actually a major financial asset.
Even in this scenario, the Court might decline to revisit the case, arguing that a thorough and detailed financial investigation should have been conducted before finalising the Consent Order.
Right of review
If a Consent Order has been issued by a Court Registrar, you have the right to request a review by a Judge. To begin this process, you will need to apply with the Court within 28 days of the order being issued.
Miss the 28-day deadline? You can still ask the Court for an extension to file your review application.
Why you should engage a lawyer
If you wish to overturn consent orders, it’s essential to provide the Court with compelling evidence showing why it must be done, whether due to a miscarriage of justice, hardship, impracticality, child welfare concerns or defaulting.
This evidence should clearly demonstrate how newly discovered information or changed circumstances would have led to different parenting arrangements or asset distribution if they had been considered in the original ruling.
Therefore, if you’re thinking about challenging Consent Orders or worried that your Orders might be at risk, it’s crucial to get advice from a Family Law professional. Navigating this legal terrain is complex, and professional guidance can make all the difference.
Our trusted team of Family Lawyers can help you evaluate the chances of successfully altering a Consent Order or defending against an application brought by your former partner.
Overturn Consent Orders in Western Australia
While overturning consent orders is a challenging process, it can be done under the right circumstances. If you believe you have grounds to change or set aside Consent Orders, receiving reliable legal advice as soon as possible is key.
At Affinitas Legal, our Perth family lawyers are here to help you navigate the legal intricacies of applying to overturn Consent Orders. Please contact our experienced team today for personalised support.
