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Can you appeal consent orders?

By October 20, 2020February 23rd, 2024No Comments

Can you appeal consent orders? Say you and your ex-partner have agreed the terms of consent orders and have had the consent orders formalised in the courts. What happens if you then have a change of heart afterwards and wish to “undo” the consent orders in some way? In the legal industry, this experience is commonly known as “settler’s regret”—and it often leads to people attempting to set the orders aside by lodging an appeal. But can you appeal consent orders? Let’s take a look at what happens in such a situation.

Sometimes parties sign consent orders at court, concluding their case without needing the judge to make a final determination in a final hearing. This is very common.

If a party then experiences “settler’s regret” and tries to appeal the consent orders, they may be confronted by the uncomfortable fact that consent orders can’t be appealed on their merits. They can only be appealed on limited grounds, for example, if it is established that there was fraud, mistake, fresh evidence or the absence of jurisdiction.

Once consent orders have been made, you are essentially stuck with them, unless you can show that something went very wrong, and had you known that, you wouldn’t have signed the consent orders. Perhaps some major evidence was lacking, perhaps the court tried to make an order beyond its power, maybe your ex-spouse lied in affidavits or otherwise defrauded you, or a mistake occurred.

Simply changing your mind, however, is not a valid reason for lodging an appeal. A recent case in the family courts, pseudonymised as Melville & Melville, demonstrates how a matter like this might unfold.

This matter involved parenting and property orders made by consent. The matter went to a trial for six days, during which the father was self-represented for the first three days but then was represented by solicitors and counsel. On the sixth day, the parties made orders by consent, so there was no need for a judge to decide the outcome of the dispute.

The father then launched an appeal against the property orders, asserting error on the part of the primary judge. But the appeal court said that this was based “on the misconceived premise that the subject orders were the product of adjudication by the primary judge, as distinct from the consent of the parties”. The appeal was dismissed.

The court explained the limited nature of appellate review of orders made by consent. You can appeal a consent order, but not on grounds relating to the “correctness” of the order, ie, its merits. In layman’s terms, this means: you can only challenge the correctness of the decision of a judge, if the judge actually made the decision.

Judges not merely “rubber stamping” decisions

As the appeals court explained in this case, judges are not there to simply “rubber stamp” decisions parties have made between them. Their power to enter the orders should not be seen as a “mere formality” or in any way “automatic”. However, it was pointed out that what is required of judges in regard to consent orders is “entirely different” to what is required to arrive at an adjudicated court decision.

Simply because the parties consent to terms “does not relieve a court, or a registrar, from compliance with the requirements of the [Family Law Act] but it may render compliance much less demanding. Provided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented, little more than consent may be needed to establish that the requirements of the section had been met”. In this case, the primary judge had complied with requirements of the Act, and there was no error in that regard.

Was duress a factor here?

The father claimed his legal representatives (solicitor and counsel) had placed him under duress to agree to the terms of the property consent orders. He asserted that it was pressure and warnings from his legal representatives about potential damage to his parenting case which forced him to enter into the property consent orders. But the appeals court noted that parenting orders had already been made “well prior” to the final property settlement consent orders, so it was basically impossible for pressure regarding parenting matters to have been applied in the property matter.

What the father needed to have done was establish to the court that the orders were “so far outside the ambit of what is just and equitable” that the primary judge should have refused to make the orders, or concluded that duress must have been a factor driving the apparent consent.

But the appeals court determined that the orders were not outside the ambit of what is just and equitable, and that the legal advice the father had received was “clearly warranted on the evidence”. The duress argument was rejected, and the father was ordered to pay mother’s costs of $10,000.

An application to set aside orders rather than an appeal

The appeals court said, if the father had wished to introduce new evidence and make new submissions to prove duress (which can’t be done in the appeal setting), the father’s “proper remedy lies elsewhere”—not in the appeal process, but in a new trial if the father were to institute proceedings to vary the orders relying on section 79A(1)(A) of the Family Law Act.

This section affords a way to redress situations where a miscarriage of justice is found to have occurred because duress (or certain other circumstances) has been established. The trial setting would enable the father’s evidence to be tested and cross-examined, something that is impossible in the appeals process.

Key takeaways if considering an appeal?

  • At the conclusion of your trial, ensure you take detailed notes about the orders so that you can review them at home, even before you receive typed orders.
  • Diarise your appeal deadline as being 4 weeks later; that is, 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. The 28 day deadline still runs from when the orders were first made verbally in court.
  • Make sure you get legal advice as soon as possible after you receive final orders.
  • Should you decide to go ahead with an appeal, 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 you are late filing, 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.

You can learn more about the appeals process generally at the Family Court’s website.

At Alliance Family Law, we have experience acting both for parties who wish to change orders and parties who wish for orders to remain the same. We can also often be a fresh set of eyes if you’d like us to act in a matter where you had other lawyers previously acting for you. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

You may also like to read our blog on reopening property settlements.


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