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When Can You Change A Consent Order?

Lawyer showing person where to sign consent order

Consent orders can be changed for a variety of reasons

Consent orders can be changed in a variety of ways for a variety of reasons. Life can alter quickly, from the fluctuating property market, to a simple change of mind, so sometimes your consent order will need to be changed too. But don’t worry, just because a consent order is legally binding, it is not a rule set in stone for life. So, let’s look at the reasons to change a consent order and how to go about doing it. 

Things to consider first before changing a consent order

Consent orders include both parenting and financial orders. Remember that the hallmark of consent orders, and almost any family law matter, is that decisions must be made in the best interests of the child. These interests encompass their safety, health, and wellbeing. So, make sure you consider the effects of your plans and how you will manage them. Flexibility is important in a child’s life, so it is definitely possible to change your consent order. Learn more about consent orders here. 

The circumstances in which you can change your consent order are

  • through an appeal on the basis of a miscarriage of justice 
  • you have a new agreement 
  • there has been a significant change in circumstances 
  • where a party has failed to meet a financial obligation under the consent order and as a result, the order should be changed 

Can a consent order be appealed?

You may decide to challenge a consent order through an appeal. There are a few grounds for appeal, which include

  • evidence of fraud 
  • evidence of duress 
  • false evidence or suppression of evidence 
  • jurisdictional issues 

These grounds for appeal are about a miscarriage of justice – these are matters of the law and not about whether the order was made unfair.  

The steps to make an appeal are the following 

  1. File a Notice of Appeal within 28 days of receiving your consent order. 
  2. Serve the Notice of Appeal to your ex-partner within 14 days. 
  3. File a draft index within 28 days of filing your Notice of Appeal (this includes all the documents relevant to the original decision). 
  4. Receive your procedural hearing (this is where you will begin to prepare your appeal). 
  5. File all necessary documents for your new hearing before your given deadline (this means any new evidence). 

The court must then decide whether 

  1. A ground for appeal has been established (fraud, duress, etc.). 
  2. The ground for appeal amounts to a miscarriage of justice. 
  3. The current order should be varied or set aside. 
  4. A new order should be made.

As you can see, there are a lot of short deadlines to keep up with. Each ground for appeal also has their own set of elements that need to be proven. Seek legal advice to make sure that this matter is worth pursuing and everything is filed in a timely manner. 

You cannot appeal a consent order simply because you changed your mind.

Can you come to a new agreement on your own?

If you want to avoid going to court, you can try and come to a new agreement with your ex-partner on your own. The best way to do this is to negotiate a parenting plan first. While they are not legally binding, a new parenting plan will override your consent order. Once you’ve made a new agreement, you can make an application to get a new consent order with your changed arrangements, if you want a formal court order.

Has there been a significant change in circumstances?

A consent order can also be changed if there has been a significant change in the children’s circumstances. This means that each case will be decided individually based on a set of factors.  

A significant change in circumstances can include 

  • where one of the parties has a new spouse or partner 
  • where one party wants to move somewhere else with the children (that was not contemplated when the order was made)
  • major life changes such as a young child starting school 
  • significant change in finances or work commitments 
  • abuse of a child 
  • where you have come to a new agreement  

Significant changes can often lead to making certain parts of your consent order impractical to be followed or cause hardship to you or your child.  

What if you can’t agree on a changed consent order?

Of course, consent orders rely on the agreement and appropriate compromises between you and your ex-partner. But sometimes things can feel like you’re at a stalemate and there are no options other than taking it to court as a new matter. 

Before you go to court and let a judge decide your parenting or financial arrangements against a set of rules of legislation and case law, consider family dispute resolution (FDR). FDR includes mediation, which is a space where you can try to come to an agreement outside the court with a mediator.  

Mediation focuses on breaking down issues into manageable parts, where each party has an opportunity to be heard. Here, you can come to more flexible and specifically tailored arrangements for your circumstances. 

What to do in today’s property climate

Just like most family law matters, it is best to sort things out as soon as you can. Before any big changes become a problem, your safest course of action is to seek a family lawyer and find the best way you can make changes to your consent order. Just like your property settlement, you don’t want to delay it.  

Disclaimer: This is general legal information. For specific advice, please get in touch with Divorce Hub.

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