Family Court Consent Orders & Change of Mind – Can consent be withdrawn?

Settlement of disputes, even during the end stages of a trial in the family courts is common, often due to the unpredictability and expense of reaching a judicial outcome.

The terms of agreement are written, signed and handed up to the Judge, or filed with the Court who ultimately determine whether the orders are in the best interests of the children; or in the case of property – just and equitable in all of the circumstances. The parties are congratulated for reaching a sensible and negotiated settlement and walk away with a sense of relief and completion.

Sometimes however, buyer’s regret can begin to seep into the corners of the mind, overtaking thought to such a degree that yesterday’s relief is replaced by great uncertainty, heightened by comments of friends or family with anecdotal evidence that they could have done so much better. Then comes the frantic call to the solicitor to stop the making of the Court Orders; they have changed their mind!

Parenting consent orders example

A recent case considered on appeal by the Family Court Melville (No. 3) [2020] FamCAFC 231 (18 September 2020) involved such regret on the part of Mr Melville after entering consent terms during day 6 of a trial. He then sought to appeal the consent orders after they were made, but before they were ‘sealed’ by the Court, some 12 days afterwards by sending an email to the Court seeking to withdraw his consent, citing ‘duress’ from his legal representatives to enter into the agreement.

The argument of duress failed, the Court acknowledging that placing pressure on a client to compromise is a necessary and proper part of the function of such legal representatives in the proper discharge of their duties to their clients and the Court. If every such compromise were to be open to attack by way of appeal by the client who subsequently thought better of it, there would be no end to litigation in this or any other Court.

The case highlighted the rules relating to consent orders as well as when it is that parties are bound by them:

• Consent cannot be withdrawn after the Orders have been made, even if they have not yet been ‘sealed’.
• As consent orders are made because of agreed terms between the parties and not an adjudication by the Court, they cannot be appealed on the basis of ‘correctness’ or their ‘merits’.
• However, consent orders can still be appealed on other grounds such as fraud, mistake, fresh evidence or jurisdictional issues.

Streeterlaw’s Accredited Specialist in Family Law Simone Green advises:

“If you are seeking or considering a property settlement, compromise is usually necessary to get the deal done. This generally means that nobody walks away with everything they hoped for and, often there will be a sense of disappointment for both parties. It is helpful to note that there are no real ‘winners’ in the family law jurisdiction in the ordinary sense, but the certainty that comes with an out of court settlement cannot be understated”.

Speak to our Family Law team at Streeterlaw today and let us empower you to resolve your family law dispute. Call us on 02 8197 0105.