Setting Aside Consent Orders
A family law consent order is a written agreement between parties that has been approved by the Federal and Family Court of Australia (FCFCA). It addresses arrangements concerning children, property, and finances. This order holds the same legal authority as an order issued by a judge but typically does not necessitate the parties' attendance in court.
A Property Consent Order documents and formalises how parties have agreed their assets such as real estate, bank accounts, shares, motor vehicles, and superannuation are to be divided.
Once a property Consent Order has been approved by the Court, it becomes a final property settlement, and that as far as legally possibly the financial relationship between the parties will be severed.
The Court will not readily set aside final property consent orders.
On application by a party under section 79a of the Family Law Act, Property Consent orders can be set aside in very limited circumstances if:
there has been a miscarriage of justice due to fraud, duress, false evidence, or suppression of evidence.
there is hardship caused by a change in circumstances affecting the care, welfare, and development of a child.
circumstances have changed such that the order is no longer possible to implement.
a party has failed to meet their obligations under the order and it is just and equitable to set aside the order.
a proceeds of crime order affects a party or their property.
An application to set aside can also be made by “a person affected by an order,” such as a creditor or bankruptcy trustee.
These provisions should not be used for correcting minor errors that don’t change the substance of the orders, which are handled under the “slip rule” or for clarifying ambiguous orders through “machinery type” provisions.
Miscarriage of Justice: A miscarriage of justice occurs when an order has been unjustly obtained. Both parties must fully disclose their financial positions when applying for a consent order, declaring to the Court that they have provided “full and frank disclosure” of all assets and liabilities.
The court follows a four-step process to determine if a miscarriage of justice has occurred:
Establishing a ground such as fraud, duress, suppression of evidence, or false evidence.
Determining if this ground constitutes a miscarriage of justice.
Deciding if the court should use its discretion to vary or set aside the order.
Deciding if a new order should be made.
The court only considers circumstances existing at or before the time the order was made, not events occurring afterward. The burden of proof is on the applicant to demonstrate a miscarriage of justice and the appropriateness of varying or setting aside the order.
The court also considers:
The public interest and the finality of litigation.
The interest in preventing parties from relitigating to escape self-inflicted financial problems.
Whether there is an alternative solution.
Hardship: To meet this criterion, a party must first demonstrate to the Court that the circumstances are of an exceptional nature. The Court has broad discretion in determining what constitutes “exceptional circumstances”. Examples include:
A child developing a chronic illness after the final orders were made.
The unexpected death of a party, rendering them unable to comply with the orders.
Continuous failure of one party to pay child support.
Additionally, the applicant must show that, due to these exceptional circumstances, they or the children will suffer hardship if the Court does not vary or set aside the orders.
Impracticality: Applications on the grounds of impracticality must prove not just that there will be an injustice or difficulty in implementing the orders, but that the orders be ‘practically impossible to comply with’.
Defaulting: A party who defaults and seeks to vary or set aside an order is unlikely to succeed, as benefiting from wrongdoing is against the principle of fairness.
Anyone contemplating the reopening of a property settlement case should first seek expert family law advice. Failing to do so may lead to filing an unsuccessful application from the start, potentially incurring significant costs for the applicant, and risking a cost order being made against them.
If you need advice, please schedule a consultation here.