Setting Aside A Consent Order
A consent order is a written agreement formed by parties that is approved by a court. It can cover arrangements for children, property and finances. It does not require the parties to attend court but has the same legal effect as an order made by a judge after a court hearing.
The Federal and Family Court of Australia (FCFCA) is reluctant to set aside consent orders given that it makes such orders on the basis they are final and it is not considered in the best interests of a child to change arrangements.
A consent order can be set aside by agreement between parties, or in limited circumstances, by court order.
By agreement
The parties can agree to set aside a consent order and apply to the court to grant this.
By court order
When the parties do not agree to set aside a consent order, the court can intervene. The court will consider an application to set aside a consent order if, for example:
- there has been a miscarriage of justice due to fraud, duress, false evidence or suppression of evidence in the making of an order;
- hardship has arisen due to a change of circumstances for one of the parties, relating to the care, welfare and development of a child;
- circumstances have changed since the making of the order which mean it is no longer practicable for the order to be carried out.
- where a party has not fulfilled their obligations under the order and it is just and equitable for the court to set aside the order;
- where a proceeds of crime order has been made against a party or covers property of the parties.
An application can also be made by “a person affected by an order”, such as a creditor or a bankruptcy trustee.
Parties will need to remember the provisions should not be used where the “slip rule” can be used to correct simple errors such as typos and computing error, or “machinery type” provisions can be used to clarify ambiguous orders.
Miscarriage of justice
A miscarriage of justice is when an order has been unjustly obtained. When applying for a consent order, both parties must provide details of their financial positions. Each party is required to state on oath that they have made “full and frank disclosure” of all assets and liabilities.
The court will engage in a four-step process, by considering whether:
- a ground such as fraud, duress, suppression of evidence or giving of false evidence has been established;
- the existence of that ground constitutes a miscarriage of justice;
- the court using its discretion should vary or set aside the order;
- another order should be made.
The court considers only circumstances that existed at the time the order was made or before it was made, not circumstances that occurred after. Further, the onus is on the applicant to establish there was a miscarriage of justice and that it is appropriate for the court to vary or set aside the order.
The court is bound to consider factors such as:
- it is in the public interest and the interest of parties that litigation be final;
- it is in the public interest that parties who have caused their own financial strife should not be allowed to relitigate to solve this;
- whether there is another way to rectify the situation.
Hardship
There is no fixed list of situations which will be deemed to have caused hardship. The criteria is that circumstances must be out of the ordinary and could not have been reasonably expected. An example may be where a child has developed a medical condition, the condition requires expensive treatment, and the primary carer will suffer financial hardship if the order is not varied.
There is a threshold test which states the court must be satisfied there is a change in circumstances that is significant enough to warrant even considering an application.
Impracticality
The court will also carefully scrutinise any application made on the grounds the order has become impractical. There must be something more than difficulty in carrying out the order. For instance, where a party goes bankrupt before paying out the other party, this would not be deemed impractical; but if property was destroyed or devalued, this could amount to the order becoming impractical.
Defaulting
Where a party has defaulted and has applied for an order to be varied or set aside, the party is unlikely to succeed given the principle that a party should not benefit from wrongdoing.
For advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Sally Crosswell
Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.
