When can property settlement consent orders be set aside?

When a married or de facto couple separates and reaches an agreement about their property settlement, it is recommended that they formalise their agreement through ‘consent orders’. To obtain consent orders, one of the party’s files a jointly prepared Application for Consent Orders together with a typescript of the agreed orders sought, in the Federal Circuit and Family Court of Australia. The application and orders are then reviewed by a Registrar of the Court. The Registrar considers whether the proposed orders are just and equitable and, if satisfied, will make (or seal) the orders. Once sealed, the orders become legally binding.

The Court’s time and resources are finite. When the Court makes final orders, it does so on the basis that the orders will finalise the matter and sever the financial ties between the parties in perpetuity. Accordingly, the Court is reluctant to ‘set aside’ final orders and there are a limited number of grounds prescribed by s79A of the Family Law Act 1975 (Cth) that the Court must be satisfied exists before it can decide to exercise its discretion to set aside or vary Consent Orders.

The limited circumstances that will enliven the Court’s discretion are:

1. Where there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance that gives rise to a miscarriage of justice.
2. Where circumstances have arisen since the order was made that make it impracticable for the order, or part of the order, to be carried out.
3. Where a person has defaulted in carrying out an obligation imposed on them by the order, and in the circumstances that have arisen as a result, it is just and equitable to vary or set aside the order.
4. Where circumstances have arisen since the making of the order, that are exceptional and relate to the care, welfare and development of a child of the marriage or de facto relationship, the child, or where the applicant has caring responsibility for the child, the applicant, will suffer hardship if the court does not vary or set aside the order and make another order in substitution for the order.
5. Where a proceeds of crime order has been made covering property of the parties, or a proceeds of crime order has been made against one of the parties.

If you have separated, had Consent Orders made by the Court and believe that one (or more) of the above circumstances applies to you, we recommend that you contact the Sydney, North Shore and Northern Beaches Family Law specialists at Doolan Callaghan Family Lawyers on 02 9984 7411 as soon as possible and arrange for an Initial Consultation so that we may provide you with specialised advice on the best way forward.