Can Consent Orders Be Overturned?
In short, consent orders can be overturned in some circumstances.
If you and your former spouse or partner have obtained orders by consent from the Federal Circuit and Family Court of Australia (FCFCOA) about property settlement or division following your divorce or separation, and either of your circumstances have changed, or you believe there has been a miscarriage of justice, there may be grounds to overturn, vary, or set aside those consent orders.
What are Consent Orders?
As the name implies, Consent Orders are orders made by the FCFCOA by the consent (or agreement) of both you and your former spouse (or former partner).
Consent Orders can be made by the Court in respect of the property of the relationship, the maintenance of a party to the relationship (spousal maintenance), and/or the care arrangements of the children of the relationship.
The purpose of a consent order is to record the agreement between you and your former spouse (or former partner) and to ensure the agreement is legally binding and enforceable.
Consent orders about property ensure that neither party can make a further claim against the other for property settlement.
The orders are given legal force when they are approved by the Court, the same as any judgment imposed by the Court.
There can be serious consequences if either party were to contravene the orders.
How Can Consent Orders Be Overturned?
The Family Law Act 1975 (Cth) sets out grounds upon which an application to overturn, vary, or set aside consent orders made with respect to the property of the relationship can be made.
Any order made by the Court that alters the parties’ property interests may be varied or set aside upon application by a person affected by the orders where the Court is satisfied that:
- there has been a miscarriage of justice because of:
- fraud;
- duress;
- suppression of evidence (including failure to disclose relevant information);
- the giving of false evidence; or
- any other circumstance; or
- in the circumstances that have arisen since the order was made, it is impracticable for the order to be carried out; or
- a party has defaulted in carrying out an obligation imposed by an order and, as a result, it is just and equitable to vary or set aside the order; or
- since the orders were made, circumstances of an exceptional nature relating to a child of the relationship have arisen and, as a result, a party or a child will suffer hardship as a result of the obligations of the order; or
- a proceeds of crime order has been made covering property of the relationship, or made against a party to the marriage (or de facto relationship).
The Court may also overturn, vary, substitute or set aside a consent order made in respect of property of the relationship with the consent of all parties by way of a further joint application to the Court.
The above grounds apply to property matters only.
A different set of principles will apply for a party seeking to overturn, vary or set aside consent orders for a parenting matter.
Contact Us
For more information about overturning, varying, or setting aside consent orders, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.
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Related Blog – Can a Separated Parent Take a Child Out of State?
