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Family Law in Canberra – Can you appeal against an order made by consent?

By August 13, 2015No Comments

Parties often sign consent orders at court, to conclude a case without running a final hearing. This is quite normal, expected and often the result of the parties receiving good legal advice (sometimes on the morning of the hearing!)

It is not uncommon for one party to then have ‘settlers’ regret’ after the orders are made, and want to set them aside, or somehow ‘undo’ them. The most common way to try to do this is by lodging an appeal.

Appeal deadlines are quite short – 28 days after the date the orders were made. Note that sometimes orders are verbally pronounced in court, but typed up days or weeks later, and then posted out after that. The 28 day deadline still runs from when the orders were first made verbally in court.

Key points – if you go to court, ensure you take detailed notes about the orders so that you can review them at home, even before you receive the typed orders. Secondly, diarise your appeal deadline as being 4 weeks later.

Assuming you would like to appeal the orders (whether made by consent or not) you’ll need to file a Notice of Appeal. You may wish to amend this later, but the key thing is to get the Notice of Appeal filed by the deadline. If you are late, you will have to file an Application in an Appeal with a supporting affidavit explaining the delay. The delay may be short, it may be that you have a very reasonable excuse. Write it all down, and that the Application, affidavit together with your proposed notice of appeal filed as soon as possible.

Key point – file your notice of appeal within the deadline, checking what the requirements are if you live some distance from an appeals registry. If it is imperfect, you can always amend it (although obtain legal advice about this).

If your appeal notice doesn’t make the deadline, the Appeals Registry will usually have a short hearing to decide whether to allow the appeal to be filed late. A delay of a few days for good reason will usually not be sufficient to knock out an appeal. The main authority for this is the High Court case of Gallo & Dawson [1990] HCA 30 which held that procedural rules should not operate if they cause an injustice. As Judge Ryan held in Charring &  Bunt [2015] FamCAFC 149, “it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of leave. However, the overarching principle is to ensure that injustice is not visited upon either of the parties.”

So assuming you have got through all those hurdles, what are your prospects of getting up on an appeal against orders made by consent?

An order made by consent may NOT be appealed on its merits by a party who consented to the order. It can only be appealed if there was fraud, mistake, fresh evidence or the absence of jurisdiction. In other words, if you agreed to the order, you are stuck with it unless you can show that something went quite wrong, and had you known that, you wouldn’t have signed the consent order. Perhaps some major evidence was lacking, perhaps the court tried to make an order beyond it’s power, maybe the ex-spouse lied in affidavits or otherwise defrauded you, or a mistake occurred. If you simply change your mind, your appeal will probably not be seen as having merit,  and your appeal can fail. This can have costs consequences.

Key points – Obtain legal advice early on after final orders are made as to the merits of your appeal. Alliance Family Law has experience both in acting for the Appellant (the person wanting to change orders) and the Respondent (the person who is happy with the orders as they are). We can often be a fresh set of eyes if you’d like us to act in a matter where  you had lawyers previously acting for you.

Please do not hesitate to contact Principal Cristina Huesch, Associate Sharla Stevens or lawyer Angela Li here at Alliance Family Law on 6223 2400 to discuss an appeal. For out of towners we offer Skype, phone and Facetime appointments.

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