Can consent orders be challenged or overturned?
There are a few circumstances in which an Order can be challenged or overturned, regardless of whether it is made by consensual agreement or in a contested hearing. Property Consent Orders are designed to end the parties’ financial relationship. Consent Orders for parenting are intended to prevent the parties from having to return to court again at any future date, as it might not be in the best interest of the children to be subjected to repeated court proceedings.
When fraud, duress, suppression of evidence, or the giving of false evidence have caused a miscarriage of justice, a court may overturn a consent order. Furthermore, if circumstances have arisen since the Order was made that make its implementation impractical, it may be rescinded. The court may also make a different Order if, in the circumstances that have arisen, it is just and equitable to vary or set aside the Consent Order. Also, if circumstances have arisen since the making of the Orders, which are exceptional in nature and relate to the care, welfare and development of a child of the marriage or relationship, the court may make another Order as a substitute for the Consent Order if the child or the applicant who has caring responsibility for the child will suffer hardship. A court will only consider a few circumstances in deciding whether to overturn an Order, so unless you fall under one of those circumstances, it will be difficult to overturn your Order.
Before the court will reopen a parenting case, it must be satisfied that there has been a significant change in circumstances since the children’s Orders were made. This is a threshold issue that must be passed before the case can even proceed.
Before I apply for Consent Orders, can I be divorced or granted an absolute decree?
You are not required to apply for a divorce before finalizing your property settlement or making arrangements for your children’s future care. For most people, resolving their children’s arrangements and/or finalizing their property settlement before filing for divorce is more important and more of a priority. Divorce applications must be filed after you have been separated for at least 12 months, and it is often the case that property and children’s issues must be resolved well before this deadline.
Many people wait until after their Consent Orders have been made before making an application for divorce and they look at this as the final step in their separation rather than the first step.
After the divorce becomes final, an application for property settlement must be made to the Family Court within 12 months. In reality, when you apply for Consent Orders, the court will not have any difficulties making Orders for a property settlement or indeed to finalize the future care arrangements for your children by Consent notwithstanding that it has been 12 months since your divorce became final and obtaining the court’s leave in this regard is rarely a problem.
Even so, if you wish, you can certainly file for a divorce before filing for a property settlement, but practicality usually dictates that a property settlement be pursued either simultaneously with or before the filing of a divorce complaint.
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.