Can you change Consent Orders?
Put simply, if you agree and the court agrees with the changes – Yes, it’s quite Simple. If you don’t both agree on the changes, then there are a number of challenges
When clients ask about changing Consent Orders, their questions usually stem from a single, frustrating reality: life has moved on, but their court orders are frozen in time.
Because Consent Orders are final and legally binding, clients often approach the topic with a mix of anxiety, confusion about the strict legal thresholds, or the mistaken belief that a simple change in their personal life automatically invalidates the old paperwork.
The common questions clients ask generally fall into three distinct categories:
1. “Can we just change it between ourselves?”
This is almost always the starting point. Clients want to know if a verbal agreement or a text exchange is enough to override the official court documents.
- “We both agree to a new routine. Do we really have to go back to court?”
- The Client’s Perspective: They believe that if they are on good terms and agree to a change (e.g., changing a changeover day or adjusting a payout timeline), their mutual agreement is sufficient.
- The Legal Truth: Your informal agreements will not erase the original court orders. If the relationship sours later, the written Consent Orders remain strictly enforceable, leaving them exposed to a contravention application.
- “Can we just write up a new agreement on a piece of paper and sign it?”
- The Client’s Think: A self-drafted “contract” or an informal parenting plan overrides the court order.
- The Legal Reality: For property, a handwritten note is legally useless. For parenting, a subsequent signed and dated Parenting Plan can legally vary an existing court order under the Family Law Act, but it lacks the automatic teeth of a court order if someone stops following it. If one party later decides to ignore the informal agreement, you can be left without any enforceable way to make them comply, and the original court orders will still apply. This can leave you vulnerable if conflict returns, as the court will rely on the existing orders, not your new arrangement.
2. “What if my ex doesn’t agree to the change?”
When one party wants a change, and the other digs their heels in, the questions turn to the hurdles of litigating a variation.
In Parenting Matters: The Rice & Asplund Threshold
Clients rarely know the case name, but they ask questions that directly trigger the rule in Rice & Asplund—the strict requirement to show a significant and material change in circumstances before the court will even consider modifying final orders.
- “The current schedule just isn’t working/is driving me crazy. Isn’t that enough?”
- The Reality: No. General regret, inconvenience, or the difficulty of the routine is not enough. The court values finality and stability for children. Some examples of what courts have found to be a ‘significant and material change’ include a parent relocating to a different city or state and this affecting the current arrangements, a child developing new health or educational needs that were not present at the time of the original orders, or a parent experiencing a substantial and lasting change in their circumstances such as a serious illness or new evidence of family violence. These types of changes go beyond mere inconvenience and have a direct impact on the welfare of the children or the workability of the orders.
- “What counts as a ‘big enough’ change?“
- Clients present specific scenarios, trying to see if they pass the test:
- “I’ve been offered a job interstate. Can I relocate with the kids?”
- “The kids are teenagers now and they flat-out refuse to go to their dad’s/mom’s. Can I change the orders to reflect what they want?”
- “My ex has remarried/has a new partner, and I don’t trust them around the kids. Can we change the supervision rules?”
- “There’s been a serious mental health turn or an issue with substance abuse since the orders were made.”
- Clients present specific scenarios, trying to see if they pass the test:
In Property Matters: Section 79A Hurdles
Property orders are incredibly difficult to reopen once sealed. Clients ask questions that meet the high threshold for a “miscarriage of justice” or “impracticality.”
- “If you lose your job and can’t afford to pay the agreed amount/refinance the mortgage in time, what happens now?” (Impracticality or default).
- “I just found out my ex hid a bank account/crypto wallet/shares during our settlement. Can I get my fair share now?” (Fraud and non-disclosure).
- “I signed the orders because they threatened to take the kids away and never let me see them again. Can I undo it?” (Duress or coercion).
3. “How long does it take, and what does it cost?”
Once clients understand the legal mechanisms, they shift directly to logistics.
- “If we both agree, how quick is the turnaround?”
- They want to know if drafting a fresh Application for Consent Orders to replace the old ones requires a physical court appearance (it doesn’t; it’s handled in chambers by a Registrar).
- “If we have to fight this in court, am I going to spend more on legal fees than the change is actually worth?”
- This is particularly common in property matters where a client realises that chasing a newly discovered $20,000 asset might cost $30,000 in legal fees to reopen a Section 79A application.
- As a general guide, legal fees for negotiating and filing agreed variations to Consent Orders can range from $2,000 to $5,000, depending on the complexity and the amount of drafting or negotiation required. However, if the other party does not agree and your case goes to litigation, costs can increase significantly.
- Contested applications to vary Consent Orders (especially under Section 79A for property) often range from $10,000 to $40,000 or more. Factors affecting the cost include the complexity of the matter, the amount of evidence required, whether experts are needed, and the number of court appearances involved. Always ask your lawyer for an estimate tailored to your situation before deciding whether to proceed.
Summary
When a client calls us to request a change to an order, the first triage question is always: “Does the other party agree?”
- If yes, the path is relatively smooth (fresh Consent Orders or a strategic Parenting Plan).
- If no, the conversation shifts to managing expectations about evidentiary burdens—proving either a Rice & Asplund material change for children or meeting the strict, narrow criteria of Section 79A for property.
How long does it take to change your Consent Orders
When you and your ex-partner are in complete agreement, the process is handled entirely administratively. You do not need to stand up in a courtroom or argue your case before a judge
The entire process usually takes between 4 and 8 weeks.
Here is how that timeline breaks down in practice:
The Timeline Breakdown
Phase 1: Drafting and Signing (1 week )
Before anything can be sent to the court, the new agreement must be formally documented.
- Drafting the paperwork: A solicitor drafts a new Application for Consent Orders and the specific Minutes of Order (the exact text of your new rules).
- Review and adjustment: You and your ex-partner review the drafts. Even when agreeing, it often takes a few days or a week to tweak the wording so that everything is crystal clear and covers future “what-ifs.”
- Signing: Both parties sign the final documents. We use DocuSign
Step 2: Court Processing (3 to 5 weeks)
Once signed, the documents are lodged electronically via the Commonwealth Courts Portal.
- The Review: Your application lands on the desk of a court Registrar. Because you aren’t appearing in person, the Registrar reviews the paperwork in chambers (their office).
- The Test: For parenting orders, they check whether the changes are in the child’s best interests. For property orders, they ensure the deal is just and equitable (fair to both sides).
- The Approval: If the Registrar is satisfied, they will formally seal the orders. The day they stamp them, your new Consent Orders officially replace the old ones.
Things that can slow the process down?
While 4 to 8 weeks is standard, a few common roadblocks can push the timeline out:
- Poor Drafting: If you draft the orders yourself and use loose language (e.g., “The father will see the kids at reasonable times”), the Registrar will reject the application and send it back for correction. The court requires specific, unambiguous dates, times, and logistics.
- Superannuation Delays: If your new agreement involves splitting superannuation, you must legally give the super fund 4 days’ notice to object before filing with the court. Waiting for the fund’s sign-off letter can add a week or two to your preparation time.
- Court Backlogs: Processing times vary with the time of year and the registry’s workload.
Good to Know
Because it takes a few weeks for the court to make the new orders official, keep following your old orders as closely as possible, or keep a clear written record (like an email trail) of any temporary adjustments you both agree to make while you wait for the court’s official seal. If you fail to comply with the existing orders during this waiting period can lead to serious consequences, such as a contravention application by the other party. Even if you both have agreed to informal changes, the original orders remain legally enforceable until the new ones are officially made, and you could be held in breach if there is a dispute or breakdown in agreement. This is why it is critical to stick to the current orders or ensure any temporary changes are clearly documented and agreed in writing.
