Can You Appeal a Consent Order?

Consent orders are designed to be final and legally binding agreements following a separation or divorce. However, in certain circumstances, you may find yourself questioning whether the consent order you agreed to is still fair or workable. This raises the question: Can you appeal a consent order?

Appealing a consent order can be a challenging process with strict legal limitations. Here’s why:

• You agreed to it: By signing a consent order, you are confirming to the court that you agree to the terms outlined. Simply changing your mind or having second thoughts is not sufficient grounds for an appeal.
• Very limited grounds for appeal: There are only a few specific situations where a successful appeal is possible:
  • Fraud or misrepresentation: If your ex-partner deliberately lied or concealed crucial information to coerce you into agreeing to unfair terms, you may have grounds for appeal. This could include hiding assets, lying about debts, or misrepresenting their income or earning potential
  • Significant change in circumstances: If a major and unforeseen event has occurred since the order was made, such as a sudden job loss, severe illness, or a substantial change in your ex-partner’s financial situation, it may be possible to argue that the order is no longer fair or practicable.
  • Best interests of children: If the current parenting arrangement outlined in the order is not in the best interests of the children, either emotionally or physically, a court may consider an appeal to modify the order.

Also read: What are the Legal Implications of Refusing To Sign Consent Orders?

What if my ex-partner lied to get me to sign the consent order?

Discovering your ex-partner wasn’t truthful about assets, debts, or other important details during your separation can be devastating.  Especially if this led you to sign a consent order that puts you at a disadvantage. Here are some of the important things to remember:

What counts as a lie?  

Not all disagreements about finances are intentional deception. Significant misrepresentation needs to have occurred for the court to consider revisiting the order. Here are some examples:

• Hiding assets or large amounts of money
• Lying about significant debts
• Misrepresenting income or earning potential

Gather your proof

If you believe your ex-partner lied or misled you during the process of drafting the consent order, it’s essential to gather strong evidence to support your claim. This could include bank statements, past tax returns, emails, or any other documentation that contradicts your ex-partner’s claims during the settlement.

Potential outcome

If the misrepresentation was significant enough to materially impact the fairness of the agreement, it may be worth applying to the court to set aside (cancel) the original consent order. While this process can be complex, a judge may agree to revisit the agreement if compelling evidence of deception is presented.

My financial situation has drastically changed since the order – what can I do? 

Life can be unpredictable, and substantial changes to your financial situation can occur.

If your circumstances have changed drastically, rendering the terms of the order unfair or impossible to meet, you may have grounds to seek a variation of the consent order.

Is your change significant enough? 

Minor fluctuations in income or expenses usually won’t justify changing a consent order. The change needs to be substantial, unforeseen at the time of the agreement, and seriously impact your ability to meet the terms of the order.

Types of life changes that may qualify to appeal a consent order

• Unexpected job loss or substantial reduction in income
• Developing a serious health condition that affects your ability to work or care for others
• Suddenly needing to become a caregiver for a family member
• Unforeseen changes to your children’s needs

Your options

1. Talk to your ex-partner: Discuss the issue directly with your ex-partner, if you have an amicable relationship. They may agree to temporarily adjust payments or other terms until your financial situation stabilises. If an agreement is reached, it’s crucial to formalise it in writing.
2. Apply to the court to vary the consent order: This formal application will require you to provide evidence of the substantial change in circumstances and argue why the original order is no longer fair or practicable.
3. Seek advice on other legal remedies: Seek advice from a family lawyer on other legal remedies that may be available, such as applying for spousal maintenance or exploring alternative dispute resolution methods.

I’m worried the consent order isn’t working for my children – can I appeal?

What if the parenting arrangements outlined in your consent order aren’t working as you hoped?  Maybe there are ongoing conflicts with your ex-partner, or your child is distressed about the current situation. Here’s what you need to know:

• The key principle: In all family law matters in Australia, the best interests of the children are the paramount consideration.
• Reasons a consent order might need to be changed in the best interests of the children include:
  • The arrangement harms your child: The arrangement is causing emotional distress, behavioural problems, or exposing the children to conflict between parents.
  • Your ex-partner isn’t following the order: Your ex-partner consistently fails to adhere to the agreed-upon parenting plan, making the arrangement unworkable.
  • Your child’s needs have changed: Your children’s needs have evolved in unexpected ways as they have grown and developed, necessitating a change to the original parenting plan.

How long do I have to appeal a consent order? 

Generally, you have 28 days from when the consent order was made to file a Notice of Appeal.  This means that the paperwork must be submitted to the court within this timeframe, not just that you have begun the process.

Can I get an extension?

It’s possible but not guaranteed. You will need to provide compelling reasons for the delay, such as not fully understanding the implications of the order at the time or experiencing exceptional personal circumstances that prevented you from acting sooner. The court will decide whether to grant an extension based on the merits of your application.

What happens if I miss the deadline altogether? 

If you miss the deadline and are not granted an extension, you may lose your right to appeal the consent order. In this case, the order will become fully binding and enforceable, making it very difficult to change in the future.

Don’t panic, get professional help

If you are considering appealing a consent order, it’s crucial to seek the guidance of an experienced family lawyer as soon as possible.

A skilled family lawyer can assess your unique circumstances, explain the appeal process in detail, and advise you on the likelihood of success based on the grounds for your appeal.

Time is of the essence, so it’s essential to act promptly if you believe you have grounds for an appeal.

At Justice Family Lawyers, our experienced team can provide you with the legal guidance and support you need to navigate the complex process of appealing a consent order.

We understand the emotional and financial challenges that can arise post-separation, and we are here to help you protect your rights and interests.