Are consent orders reversible or can they be challenged?
It is still possible to challenge or overturn an Order, whether it was made through Consent or through a contested hearing, but the circumstances are pretty limited. Consent Orders for property end the financial relationships between the parties. The aim of parenting Consent Orders is to make them in a way to avoid repeat court proceedings at any future date, and to avoid children being dragged through court proceedings repeatedly.
It may be possible for the court to overturn consent court orders if there has been a miscarriage of justice due to fraud, duress, suppression of evidence, or false testimony. A court may overturn an Order if circumstances have changed since it was issued that make it impractical to carry out the Order. It is also possible for the court to set aside the Consent Order if a person fails to fulfill an obligation prescribed by the Orders, and if it is just and equitable to do that, the court can do that and make a new Order. The court may also make another Order as a substitute for the Consent Order if exceptional circumstances have arisen since the making of the Orders relating to the child of the marriage or relationship. If a child, or the applicant who is responsible for caring for the child, suffers hardship if the Consent Order is not altered, the court can change the Consent Order. If you do not fall within those quite limited circumstances, it will be hard for the court to overturn an Order unless there is a compelling reason to do so.
The court must be convinced that the circumstances have changed significantly since the children’s orders were made before it will even reopen a parenting case, which is why it is a threshold issue that must be met before the matter can proceed.
Would I be able to obtain Consent Orders if I were divorced or got a decree absolute?
Neither the property settlement nor the future arrangements for the care of your children require that you apply for divorce before they are finalized. Instead, most people prefer to settle their children’s arrangements and/or finalize their property settlement before requesting a divorce. Divorce applications must be made after twelve months of separation, and often there are pressing matters that need to be addressed well in advance of this deadline, such as property matters and children’s issues.
Consent Orders are often made after separating couples have reached their consent, and most people wait to file for divorce until after the Consent Order is in place.
If your divorce is final, you have a year to apply for a property settlement in the Family Court. If you apply for Consent Orders, the court will not have any difficulty in making an order for your property settlement or for your children’s future care arrangements by consent despite the fact that it has been 12 months since your divorce became final and obtaining the court’s leave in this regard is rarely a hassle.
However, if you wish, you can certainly apply for a divorce before obtaining a property settlement. However, practicality dictates that a property settlement will usually be sought prior to, or concurrently with, the filing of the divorce application.
If you require assistance with Consent Orders, please contact Kate Austin Family Lawyers Melbourne They are accredited specialists in Family Law and can assist in all areas of amicable agreements and divorce applications.