Is it possible to challenge or overturn consent orders?
Even if the Order is made by consent or pursuant to a contested hearing, it can still be challenged or overturned, but the circumstances are pretty limited. Property Consent Orders end the financial relationship between the parties. Consent Orders for parenting are made in a way that is least likely to result in the parties returning to court at a later date, as it is not in the best interests of children to go through court proceedings multiple times.
The court may overturn court Orders made by Consent if fraud, duress, suppression of evidence or giving false evidence has resulted in a miscarriage of justice. The Order may also be overturned if circumstances have changed since it was made that make it impossible to carry out the Order. In addition, if a person has defaulted in executing an obligation required by the Order, and, in the circumstances that have arisen, it seems just and equitable to vary the Consent Order or set it aside, the court can do so. It is also possible for the court to make another Order in place of the Consent Order if exceptional circumstances have arisen since the Orders were made relating to the care, welfare and development of a child of the marriage or relationship. If the child, or the applicant who cares for the child, suffers hardship if the Consent Order does not be varied, the child may suffer hardship. It is difficult to overturn an Order unless you fall within a few very limited circumstances that the court will consider when deciding whether to overturn an Order.
It’s a threshold issue, so it has to pass before a parenting case can even get reopened, because the court has to be convinced there’s been a significant change in circumstances since the children’s orders were made.
Do I have to be divorced or have an absolute decree before I apply for Consent Orders?
No divorce is necessary before settling your property and making childcare arrangements. For most people, settling their kids’ arrangements and/or finalizing their property settlement is more important and much more of a priority before getting divorced. A divorce application must be filed after being separated for at least 12 months, and it’s often the case that there are pressing matters related to property and kids well before this date.
The majority of people wait until after their Consent Orders have been made before filing for divorce and see this as the final step of their separation rather than the beginning.
After your divorce becomes final, you have 12 months to apply to the Family Court for a property settlement. In reality, if you apply for Consent Orders, the court will have no difficulty making Orders for a property settlement or indeed to finalize the future care arrangements for your children by consent, even though your divorce is 12 months old and obtaining the court’s leave is rarely difficult.
It is nonetheless the case that you can certainly apply for a divorce prior to obtaining a property settlement if you want to, but practicalities usually mean that a property settlement is being attended to, either conjunctively with or prior to an application for divorce being made.
If you require assistance with Consent Orders, please contact Kate Austin Family Lawyers Sydney They are accredited specialists in Family Law and can assist in all areas of amicable agreements and divorce applications.