A consent order is a court order that is enforceable under the law and that formalizes a settlement between parties to a dispute. A consent order is unlike a normal court decision because it is entered into by the consent of both parties and endorsed by the court. It is generally applied in:
Family law disputes, such as property settlements and parenting orders
Civil disputes, such as commercial contracts and property disputes
Financial settlements, such as binding financial agreements
Once a consent order is approved by the court, it is of equal legal force to any other court order, and parties are required to abide by its conditions.
How Are Consent Orders Created?
In order to get a consent order in Australia, the following process is generally followed:
Agreement Between Parties – Both parties need to negotiate and come to an agreement on the conditions of the order.
Preparation of the Order – The contract is drafted into legal language and presented to the court.
Court Review – The court determines whether the order is reasonable and just, especially in family law cases.
Approval & Enforceability – Once sanctioned, the consent order becomes legally enforceable.
The court will not sanction a consent order unless it is satisfied that it is in the best interests of all the parties involved, especially where children or money matters are involved.
Can a Consent Order Be Appealed?
Unlike regular court orders, a consent order is not usually appealable because it is by agreement. There are, however, rare instances where it can be challenged or set aside.
Reasons for Challenging or Setting Aside a Consent OrderAppealing a consent order is not common, but the court can set it aside in certain situations, such as:
Fraud or Misrepresentation – If a party gave false information or did not reveal important financial information, the court can set aside the consent order.
Unconscionable Conduct – If a party was unduly pressured or coerced into signing the order, it can be set aside.
Material Changes in Circumstances – If there are unforeseen changes in circumstances (e.g., extreme financial difficulties or child welfare issues), the court can review the terms of the order.
Non-Compliance with Legal Formalities – If the order was made in breach of proper legal formalities, it may be invalid.
Duress or Mistake – If a party signed the consent order under duress, mistake, or undue influence, the court can review its validity.
The Process for Setting Aside a Consent OrderIf you feel that an order of consent must be set aside, the following procedure follows:
Legal Advice – Meet a litigation lawyer who will evaluate your claim's worthiness.
Application to Court – Make an application to the correct court to seek the setting aside of the order.
Court Consideration – Evidence will be assessed by the court and whether to set aside the order will be decided.
Possible Outcomes – The court may uphold, vary, or set aside the consent order, depending on the case's circumstances.
Key Considerations Before Seeking to Appeal a Consent Order
Before attempting to challenge a consent order, consider the following factors:
Time Limits – There may be strict time limits on when an application to set aside an order can be made.
Litigation has an important part to play in consent orders, especially where issues of compliance or fairness are involved. Where one party is in breach of a consent order, the other can pursue legal remedies to enforce the order.
Enforcing a Consent OrderWhen one party does not comply with a consent order, the following legal actions may be pursued:
Court Application for Enforcement – The aggrieved party can seek a court order for enforcement.
Contempt of Court Proceedings – Where a party deliberately disregards a consent order, they might be penalized.
Variation of Order – In certain instances, a court can vary the order to address changing circumstances.
Relevant Australian Laws Regulating Consent Orders
A number of important pieces of legislation regulate consent orders in Australia, including:
Family Law Act 1975 (Cth) – Regulates family law consent orders, such as property settlements and arrangements for children.
Consent orders offer a binding legally effective answer to dealing with disagreement, though not always. When there's been fraud, misrepresentation, or substantial changes in circumstances, they may be subject to a court challenge.
If you are thinking of applying for or objecting to a consent order, it is critical to seek professional legal guidance. New South Lawyers specializes in litigation and dispute resolution to ensure that your interests and rights are preserved.
