Can Property & Financial Consent Orders be Overturned?
2 August 2023 · Read time: 6 minutes
Once terms have been agreed on and formalised as Consent Orders, Courts will be extremely reluctant to change or overturn them.
Consent Orders are formal agreements that have been arrived at voluntarily by two parties, and then submitted to the Court. Once the Court approves the submitted Consent Orders, the Judge will issue them as Court Orders, as if they came directly from the Court.
At that stage the Consent Orders are viewed as finalised - as if they were Orders issued by the Court at the end of court case. Therefore breaching Consent Orders are treated as having breached a Court Order.
Similarly, Courts generally take a dim view of reopening finalised Consent Orders.
Reopening finalised Property Consent Orders under s79A
Section 79A of the Family Law Act contains a provision in the act that allows for the reactivation of a final property settlement order.
This can be considered when a party seeks to reopen a property settlement that has already been finalised.
The section can be relied on where a there has been some kind of miscarriage of justice. This could be in the form of either:
- Duress
- Fraud
- False evidence, or
- The suppression of evidence during the finalisation of the property settlement.
Such evidence typically points to the other party's deception regarding assets, such as hiding the existence of a bank account.
Adhering to the requirements of Section 79A can prove to be challenging.
Other causes for overturning consent orders
Other factors that can potentially be used, including:
- When the original order has become impracticable due to newly arisen circumstances.
- If a party has failed to fulfil an obligation under the order, and the ensuing circumstances make it just and equitable to modify the order.
- When exceptional circumstances have arisen since the order's issuance, leading to potential hardship for the applicant if the court does not alter or nullify the order.
- When a proceeds of crime order affects the parties' property or one of the parties involved.
What happens if consent orders are breached?
Breaching a court order carries identical consequences, regardless of whether the order was established through mutual agreement or following a contested hearing.
Typically, the court's primary objective is to ensure the implementation of the order. In certain cases, the court may refrain from issuing additional punitive orders if it anticipates compliance with the existing order in the future. The prospect of appearing in court and explaining non-compliance with an order can often be sufficient to encourage future compliance, thereby avoiding further penalties.
When the court deems it necessary to impose a penalty, it assesses the nature of the breach, distinguishing between minor and major breaches of the consent order. The frequency and reasons for breaching the consent order also play a role in determining an appropriate penalty.
For minor breaches of a parenting order or post-separation attendance orders, the court may choose to issue a warning. However, in more serious cases, fines or the payment of legal costs to the opposing party may be ordered. It is important to note that imprisoning a party for breaching court orders is an infrequent outcome and typically requires a significant and severe breach.
In cases where an order is breached, the court possesses various options, such as modifying or altering the existing orders, suspending the order, or discharging it altogether.
Can consent orders be overturned if there has been a miscarriage of justice?
Yes they can be. However the threshold for what exactly constitutes a “miscarriage of justice” is quite high.
Modifications to final property orders can be granted in situations where one party has omitted to disclose significant financial information. Had this information been revealed at the time of property division, it would have significantly influenced the outcome.
That is one reason that we advise clients to be thoroughly truthful and open in their disclosures - to prevent any future challenge to finalised Consent Orders.
Is “duress” grounds for overturning consent orders?
While it can be, actually establishing duress can be hard as duress often occurs on a psychological level. It is an ‘act’ of pressure that can be hard to measure or prove.
There are three alternative methods for establishing undue influence:
- Proving actual undue influence through direct evidence of the circumstances surrounding the specific transaction. The pressure need not be illegal or morally questionable.
- Some relationships carry a presumption of undue influence. For example, relationships like a parent / child are recognised as presumptively susceptible to undue influence. There are situations where the relationship of fiancé and fiancée may be said to include an element of undue influence at critical moments in a relationship. Changing social mores can alter the nature of influence in particular relationships.
- In certain relationships, one party may place such a high level of trust and confidence in the other that it creates a scenario where a presumption of undue influence arises.
Can consent orders be changed if hidden assets are found?
The party seeking the revocation of the Consent Order must demonstrate that the concealed asset, whether in the form of shares, real estate, or bank accounts, was of such significant value that upholding the Order would result in an injustice.
However, reopening a consent order based on these grounds could prove challenging if the party failed to conduct a thorough investigation into the other party's assets when they had the chance.
For instance, if the accused party disclosed having a business interest, but downplayed its value during the consent order process, and later, it is discovered that the business interest holds substantial worth, the Court may decline to reopen the case.
The reason being that a comprehensive and documented investigation should have been conducted prior to the signing of the Consent Order.
Overturning Consent Orders - FAQs
What are consent orders?
Consent orders are legally binding agreements voluntarily reached between parties involved in a family law dispute, approved by the court, and with the same effect as if they were made by a judge after a trial.
What is the difference between property and parenting consent orders?
Property consent orders deal with the division of assets and financial resources, while parenting consent orders deal with the arrangements for the care, welfare, and development of children.
What is a Right of review?
Where consent orders were issued by a court Registrar, there exists a right to have these orders reviewed by a Judge. To initiate the review process, an application must be filed with the court within 28 days from the date the orders were issued. However, if the 28-day time limit has passed, it is still possible to seek an extension of time from the court for filing the review application.
