Can consent orders be challenged or overturned?
No matter how the Order is made, it can still be challenged or overturned, but the circumstances are pretty limited. Property Consent Orders end the financial relationship between the parties. The idea is to make parenting Consent Orders that are least likely to send the parties back to court at any future date, and it’s not in the best interest of kids to be dragged through court proceedings multiple times.
You can get the court to overturn court orders that have been made by consent if you can prove fraud, duress, suppression of evidence, or giving of false evidence. Also, if circumstances have changed since the Order was made, it may be possible to overturn it. As well, if a person defaults on a requirement under the Orders, and in the circumstances that have arisen, it’s just and equitable to change or set aside the Consent Order, the court can do that. Also, if circumstances have arisen since the making of the Orders that are exceptional in nature and relate to a child of the marriage or relationship, and the child, or the applicant who has caring responsibility for the child, suffers hardship if the court doesn’t modify the Consent Order, the court can substitute another Order. A court will only overturn an order in a few very limited circumstances, so unless you fall within those limited circumstances, it will be tough to get your order thrown out.
With parenting matters, the court has to be satisfied that there has been a significant change in circumstances since the children’s Orders were made before it will even re-open a parenting case, so this is a threshold issue, required to be passed before the matter can even proceed.
Can I be divorced or decree absolute before I apply for Consent Orders?
No divorce is necessary before settling your property and making child care arrangements. For most people, settling their kids’ arrangements and/or finalizing their property settlement is more important and much more of a priority before getting divorced. A divorce application must be filed after being separated for at least 12 months, and it’s often the case that there are pressing matters related to property and kids well before this date.
Most people wait until after their Consent Orders are made before filing for divorce, thinking of it as the last step in their separation.
When your divorce is final, you have 12 months to apply to the Family Court for a property settlement. If you’re applying for Consent Orders, then the court won’t have any problem making Orders for your property settlement or to finalize the future care arrangements for your kids by consent. Even though it’s been 12 months since your divorce became final, obtaining the court’s leave in this regard is rarely a problem.
However, if you want to, you can get a divorce before you get a property settlement. However, practicality usually means that you’re going to be settling your property before or at the same time as filing for divorce.
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.