Can a Consent Order be Changed or Overturned After it’s Made?
Yes, Consent Orders can be changed or overturned, but this is only possible under very limited circumstances. The Federal Circuit and Family Court of Australia is generally reluctant to set aside orders, given the principle of finality in legal proceedings.
Both parties can agree to the proposed changes to a set of Consent Orders , a new set of proposed Consent Orders can be drafted, which can then be submitted to the Court for approval. This provides a straightforward pathway for modification when consensus exists.
However, if there is no agreement between the parties, an application must be made to the Court, and specific, stringent grounds must be demonstrated 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. 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.
- 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 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 conflict between parents that renders the current order unworkable. The fact that overtime things change in itself is not a reason 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 a review by a Judge if the order was initially issued by a Registrar.
Ground Description Key Requirements/Examples
Miscarriage of Justice The order was obtained through unfair means. Fraud, duress, suppression of evidence (including non-disclosure), false evidence, or other circumstances that unjustly influenced the order.
Hardship: Unforeseen and exceptional circumstances causing significant hardship. Unexpected job loss, severe financial strain, or a new, expensive medical condition for a child arising after the order was made.
Impracticality Circumstances have changed, making the order impossible or extremely difficult to carry out. Destruction or significant devaluation of property, or other unforeseen events rendering the original terms unworkable (more than mere difficulty).
The defaulting party has failed to fulfil an obligation under the order. Non-compliance with a term of the order, where the resulting circumstances make it just and equitable to vary or replace it.
Significant Change in Circumstances (Parenting Orders Only) A substantial change affecting the child’s life or the practicality of the arrangements. Changes in living arrangements, child’s developmental needs, parental relocation (interstate/international), or unworkable parental conflict. Must be in the child’s best interests.
A summary of Grounds for Varying or Setting aside Consent Orders
Ground | Description | Key Requirements/Examples |
Miscarriage of Justice | The order was obtained through unfair means. | Fraud, duress, suppression of evidence (including non-disclosure), false evidence, or other circumstances that unjustly influenced the order. |
Hardship | Unforeseen and exceptional circumstances causing significant hardship. | Unexpected job loss, severe financial strain, or a new, expensive medical condition for a child arising after the order was made. |
Impracticality | Circumstances have changed, making the order impossible or extremely difficult to complete. | Destruction, significant devaluation of property, or other unforeseen events render the original terms unworkable (more than mere difficulty). |
Defaulting | One party has failed to fulfil an obligation under the order. | Non-compliance with a term of the order, where the resulting circumstances make it just and equitable to vary or replace it. |
Significant Change in Circumstances (Parenting Orders Only) | A substantial change affecting the child’s life or the practicality of the arrangements. | Changes in living arrangements, child’s developmental needs, parental relocation (interstate/international), or unworkable parental conflict. Must be in the child’s best interests. |
