RMB Articles

Are Family Law Consent Orders able to be set-aside?

Posted 23-02-2015
Written by admin 101
Category Family Law

Following a Relationship breakdown, the parties to that relationship, being spouses or people who have been in a De Facto relationship often need to resolve matters of property. This is, in essence, what property settlement is all about.

If the parties are able to come to an agreement themselves, or with the assistance of their own legal representation, they are able to enter into Consent Orders. Consent Orders are orders that are signed off on between the parties and are then in force between the parties and have the same legal effect as they would had they been made by a Judge following a Hearing.

Orders can not be changed in most circumstances and are often in force between the parties indefinitely. The Family Law Act 1975 (Commonwealth) provides for certain circumstances in which a party may appeal to have the orders set aside. Some examples of these are as follows:

  • Where an order that has been made is impracticable or the carrying out of that order is impracticable. This is often the result of there being a change in either or both parties' circumstance which they could not have predicted.
  • Where a proceeds of crime order has been made which deals with the property of the parties. This can be in relation to one or both of the parties. This would mean that the property is required to be dealt with differently than the manner in which the orders have provided for.
  • Where one of the parties has failed to comply with one or more of the orders and in the circumstances it would be unjust for the orders to remain in force. This could be in relation to the transfer of real estate or payment of a sum of money.
  • Where there has been a miscarriage of justice or one of the parties has been fraudulent. This can be in relation to disclosure or withholding assets.

Should either party be found to be in breech of their duties to the court, it is likely that a costs orders will be made. The Family court has the power to order costs in against either party if they have been found to have not acted in good faith.

It is worth considering the above circumstances when negotiating and entering into Consent Orders.

If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist compensation lawyers.