Can a Family court change a Consent Order?
Yes, a Family Court can change or “set aside” a Consent Order, but this is not a straightforward process. A Consent Order is a final, legally binding court order, and the court’s general position is that there should be finality in legal proceedings. They will only intervene in particular and limited circumstances.
The power to set aside or vary a Consent Order is found in the Family Law Act 1975 (Cth). The relevant sections are:
- Section 79A for property and financial matters.
- Section 65DA for parenting matters (though the legal principles are similar for all parenting orders, not just consent orders).
Here are the primary grounds on which a court may set aside or vary a Consent Order:
For Property and Financial Orders (under Section 79A)
The court must be satisfied that a “miscarriage of justice” has occurred. This can happen due to several reasons, including:
- Fraud: This is a key ground. For example, if one party intentionally hid or failed to disclose a significant asset or source of income, and the court is satisfied that the non-disclosure would have resulted in a different, more just outcome.
- Duress: If a party was coerced or pressured into signing the orders against their will.
- Suppression of Evidence or Giving False Evidence: This is similar to fraud and relates to a failure to provide full and frank disclosure of all financial information.
- Exceptional Circumstances and Hardship: The court may set aside the orders if extraordinary circumstances have arisen since the orders were made that would cause “hardship” to the applicant or a child of the marriage. This is a very high bar and requires a significant and unforeseeable change, such as a severe illness, a massive unexpected inheritance, or a lottery win.
For Parenting Orders
The court is even more reluctant to change final parenting orders because of the principle that it is in a child’s best interests for there to be finality and stability in their living arrangements.
The key legal principle here is often referred to as the “Rice & Asplund” rule. This means the court will not re-hear a case unless the applicant can demonstrate there has been a “significant change in circumstances” since the original orders were made.
Examples of a significant change in circumstances include:
- A parent wanting to relocate with the children to another city or state.
- A child’s or a parent’s health has undergone significant changes.
- There have been new, serious allegations of abuse or family violence.
- The current living arrangements are no longer practicable or pose a risk to the child.
- The child’s wishes have changed, and they are of an age and maturity where their views should be considered.
What Is the Process?
If both parties agree.
If both parties agree to change a Consent Order, they can simply file a new Application for Consent Orders that sets out the new terms of their agreement. The court will review the new orders and, if they are considered just and equitable (for financial matters) and in the child’s best interests (for parenting matters), will make the new orders.
If one party does not agree
If one party does not agree to the change, the other party must file an Initiating Application with the court and prove that the grounds for setting aside the orders exist. It will be a lengthy and expensive process and should only be undertaken after careful legal advice.
Can a Family court change a proposed consent Order
Yes, a Family Court can change a proposed Consent Order before it’s approved and sealed. The court’s primary role is to ensure that orders are just and equitable in financial matters and in the best interests of the child in parenting matters.
If a proposed Consent Order doesn’t meet these legal requirements, the court will not approve it as is. Instead, they will issue a requisition, a formal request for the parties to provide additional information or to amend the orders.
