Yes, a consent order can be changed or overturned, but only under very limited circumstances. A consent order is a legally binding legal document approved by the court, often used by separating couples after separation or divorce to formalize property orders or parenting arrangements. These orders are intended to finalize the financial relationship between two parties or former partners, preventing future claims unless exceptional circumstances arise. The Federal Circuit and Family Court of Australia is generally reluctant to set aside existing orders, given the principle of finality in legal proceedings and the legal weight provided by court seals.

Both you and the other party can reach an agreement on new proposed orders to modify existing consent orders. These proposed orders must be submitted to the court for approval, and legal advice is strongly recommended for both you and the other party to avoid future disputes and ensure the relationship between separating couples is properly formalised. Family lawyers can assist in preparing proposed orders and providing professional guidance.

However, if there is no agreement between the two parties, only a person affected by the existing orders—such as a partner, ex-partner, or someone with a financial relationship—can apply to overturn consent orders. An application must be made to the court, and the court exercises discretion, applying a very high threshold to ensure finality. The onus of proof is on the person seeking the change to demonstrate specific, stringent grounds for the order to be varied or set aside:

• Miscarriage of Justice: This occurs when an order was obtained through unfair means, such as fraud, duress, suppression of evidence (including non-disclosure of relevant information), or the giving of false evidence. Proving duress, which involves demonstrating undue influence or coercion, can be particularly challenging.

• Hardship: This ground applies when unforeseen and exceptional circumstances arise after the order was made, causing significant hardship to a party or a child. The court must find that a party has failed to fulfill their obligations under the consent order for it to be varied or set aside. Examples might include an unexpected job loss that severely impacts financial capacity, or a new medical condition for a child requiring expensive treatment.

• Impracticality: If circumstances have changed since the order was made, rendering it impractical to carry out, this ground may apply. It requires more than mere difficulty; for instance, if property subject to the order is destroyed or significantly devalued.

• Defaulting: If a party has defaulted on an obligation under the order, and the resulting circumstances make it just and equitable to vary or replace the order, the court may intervene.

• Significant Change in Circumstances (for Parenting Orders): For parenting orders specifically, the court will only reconsider final orders if there has been a significant change in circumstances since the order was made, and importantly, if it is in the best interests of the child for the orders to be reconsidered. Examples of such changes include a substantial alteration in parenting arrangements or living arrangements for either parent, significant developmental changes or new needs for the child, a parent’s relocation interstate or internationally, or an escalation of disputes or conflict between parents that renders the current order unworkable. The fact that things change over time is not, in itself, enough to represent a significant change in circumstances.

There are strict time limits for filing an application to appeal or review consent orders, such as 28 days for filing a Notice of Appeal. An appeal is not a “do-over”; it is a request for a higher court to review a decision based on legal errors.

When considering informal modifications, a parenting plan can be used to modify parenting arrangements, but it does not have the same legal weight as a court order. Only the two parties or a person affected by the existing orders can apply for changes, and the court will only intervene if there is evidence of changed circumstances or a miscarriage of justice.

Given the complexity of overturning consent orders and the importance of ensuring any agreement is legally binding, it is crucial to seek legal advice or professional guidance from family lawyers. They can help you understand your rights, obligations, and the likelihood of success in overturning consent orders, as well as assist in navigating disputes, preparing proposed orders, and ensuring that any legal document formalizing your separation, property orders, or parenting arrangements is enforceable and protects your future interests.