Surviving the aftermath of a separation or divorce can be an extremely complex life event, especially when it comes to the legal agreements that could shape your future. One of the most crucial elements in this highly emotional process is the consent order – a powerful legal tool that formalizes arrangements between separating couples. But what happens when life throws a curveball, and you find yourself questioning if these orders can be changed?
In this article, we have a closer look at the intricacies of a consent order and the possibilities of modifying them. Whether you’re contemplating a change due to shifting circumstances or simply curious about your options, this article will provide you with invaluable insights.
We’ll investigate the fundamentals of how consent orders work, why they’re necessary, and the challenges involved in altering them once they’re in place. From financial settlements to parenting arrangements, we’ll cover the various aspects of consent orders and the nuanced approaches to these potential modifications.
You’ll discover the legal thresholds that must be met to justify changes, including the landmark “Rice vs Asplund” test that courts use to evaluate requests for modifications. We’ll also discuss the importance of communication and mediation in resolving disputes before resorting to legal action.
Whether you’re a parent facing changing family dynamics, an individual grappling with financial shifts, or simply someone seeking to understand their rights, this article offers clear, professional guidance on getting your head around the complex world of consent order modifications.
Can I Change a Consent Order?
This is a common question asked by many people. But before we answer the question, let’s give some context.
How does a Consent Order work?
When two individuals separate, they typically want to come to an agreement on how their financial assets will be divided and how their children will be cared for.
When two parties submit their proposed settlement to the Family Court of Australia, the Court seals the agreement to make it enforceable and creates a Consent Order. While saving you the time, money, and stress of having to go through the entire court process, it has the same legal impact as if the judge had made the Order themselves.
Family law consent orders are a practical and excellent way to cease your financial obligations to your ex-spouse and give you the freedom to go on independently and with confidence.
Why is a Consent Order necessary?
A Consent Order need not be created after a divorce according to the law.
Some spouses decide to divide their assets and the amount of time they will each spend with their children informally and privately. Even though this might be a perfectly legitimate way for some divorcing couples to get the results they want, no one is legally protected by it.
As a result, no party is legally barred from asking the court for orders that differ from those that were previously reached, and either party may do so at any time. Such a legal document is a consent order, which, with the exception of a few very specific situations, will bar either party from pursuing legal action against the other in the future.
After orders have been placed, what happens if we wish to amend it?
You can’t, is the quick response. It is intended that neither party may unilaterally alter the orders because they are binding.
If you can demonstrate that there has been a significant change in circumstances since the Order was made, you may be able to have the orders amended in cases involving children.
Generally speaking, it is not possible to change financial orders. The parties’ agreement to the status of the property pool is the basis for the orders, which are made based on that agreement. Because the orders have a short execution period, they are typically finalized quickly.
A party may apply to the court for different orders if they can show that they were coerced into accepting the Order and that they did not do so voluntarily. But it must be kept in mind that the Court would only approve the consent order if it was deemed fair and just. Because of this, even if you believed that you had been forced into signing the Order, you would need to consider how much more money you would really receive from the property pool if your new application were to be granted against the cost of going to court. The stress and cost of legal representation for many people far outweigh any additional compensation to which they may have been entitled.
Changes are made more regularly in parenting-related areas. The Court may take this into consideration if one parent can show that there has been a material change in circumstances and that new arrangements are necessary.
Again, it must be remembered that the Court’s intervention may not be immediately necessary if the parties are in agreement to modify the existing orders. A court’s parenting orders have the impact of being enforceable by both parties. We like to include language in our directives allowing for “as otherwise agreed” care arrangements. This gives the parties the flexibility to agree to alter them as they see fit. Therefore, the only time you would seek new orders would be if your circumstances had drastically changed and the other parent had refused to contemplate doing so. However, this wouldn’t alter a consent order. It would include submitting a request for new orders to the court.
Due to a change in their own or their children’s circumstances, more and more parents are amending family court orders.
It is crucial to understand that family court orders cannot simply be overturned because one parent “feels like it” or doesn’t like how things are going under the order.
The first step in changing a family court order is to talk to the other parent of the child to see if you can reach an understanding or a compromise.
If this is not possible, you must proceed to mediation to try to settle the dispute before consulting with attorneys and going to court.
Last but not least, if all of this has failed, you might want to think about getting legal counsel and going to court.
You must prove to the court that there has been a substantial change in circumstances in order to have a parenting order modified in court.
Threshold Test of Rice and Asplund
If you want to modify family court orders, you must demonstrate that there has been a material change in the situation that necessitates the modification.
This is done to prevent parents from having to go to court repeatedly to get the orders they seek.
To modify the orders, a formal court application must be made.
In Rice v. Asplund, a case that was resolved more than 30 years ago, the Family Court stated that it would need to be convinced that a key piece of information was either not provided when the current Orders were made, or there had been a significant change in the circumstances.
The Court has been cautious to emphasize that although change is a constant in life, it must be of a significant nature in order to warrant a review of Final Orders.
Changing Family Court Orders Without Court Intervention
When life circumstances change, you may find yourself needing to modify existing family court orders. While the prospect of returning to court can be daunting, there are alternative pathways to consider before taking that huge step. Understanding these options can save you time, money, and a lot of stress while potentially achieving the desired outcomes.
The first and often the most effective approach is direct communication with the other parent. open, honest dialogue can pave the way for mutual understanding and amicable compromise. Many parents find that they can reach an agreement on modifications without external intervention, especially when both parties prioritize the children’s best interests, which should come first and foremost.
If direct communication proves challenging, mediation offers a safe and structured environment for negotiation. A neutral third party facilitates discussions, helping both parents explore options and find this sometimes elusive common ground. This process can be particularly beneficial in maintaining co-parenting relationships and avoiding the adversarial nature of court proceedings.
One outcome of successful mediation might be the creation of a structured parenting plan. This document outlines new arrangements agreed upon by both parties, effectively modifying the existing court order without formal legal proceedings. However, it’s crucial to note that while a parenting plan can be a flexible tool for managing changing family dynamics, it doesn’t carry the same legal weight as a consent order.
Before finalizing any informal arrangements, seeking legal advice is something you should consider first. A family law expert can help you understand the implications of your decisions and ensure that your rights and interests are protected. They can also guide you on whether your situation might benefit from formalizing the new agreement through a consent order, which would provide legal enforceability.
Breach of Current Orders
If a request is made alleging that one party has violated the Orders, the Family Court may also take that into consideration (this is known as a Contravention Application).
The Court may modify the Order following the filing of a Contravention Application.
Whether the breach was proven or not is irrelevant.
What To Do If You Want to Change Orders?
The best way forward is to seek the approval of the other party. At Mediations Australia, we regularly assist people to reach agreement in all types of matters, including in relation to consent orders. We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!
