CONSENT ORDER AND THE MISCARRIAGE OF JUSTICE
What is a consent order?
A consent order is a court-approved written agreement between a couple who has separated. This type of order is applicable when both parties do not need the Court's intervention in their property or parenting matters. A consent order should not be mistaken for a court order made by a judge, which has the same result, but is drawn up by a judicial officer after a court hearing.
Going with the option of a consent order means a separated couple would not have to go through court proceedings to resolve their disputes, which saves them money and time.
A consent order can cover parenting arrangements, property agreements and financial arrangements but it does not include child support or child expenses. In formalising consent orders, the Court carries out due diligence to ensure they are appropriate, in the best interest of the children and are just and equitable.
An Application for Consent Orders allows both parties to file a joint application establishing the terms of the agreement without the need to appear in Court. A judge or a registrar can then make the consent order. If there is a “miscarriage of justice” in the creation of a consent order or if some other issue makes the order unreasonable, then the Court may agree to vary or set aside the consent order upon application.
When can a court set aside consent orders?
In some circumstances, a court may agree to set aside consent orders. An example of this is if one party claims that the other party pressured them to reach an agreement.
According to Section 79A(1)(a) of the Family Law Act, a property order can be set aside or varied if:
It is deemed a "miscarriage of justice" because of fraud, duress, suppression of evidence, which includes the failure to disclose relevant information, the giving of false testimony or any other circumstance;
The impracticable nature of the order because of circumstances that have occurred after it was made;
One party has defaulted in carrying out an obligation under the order and because of the things that have emerged as a result, it is therefore just and equitable to vary the order;
Unusual circumstances have resulted from the making of the order in which the applicant will suffer hardship if the court does not vary or set aside the order;
A proceeds of crime order has been made against the property of the parties or one of the parties.
A court may also act according to section 79A when all parties consent to it, but an absence of fairness is not in itself a basis for a court to exercise its discretion to set aside consent orders.
The right of review process
There would be the option for a right of review by a judge if a registrar made the consent order. Within 28 days from the date of the consent order, an application for review must be filed with the court. In the event more time is needed, a request for an extension can be sought from the court.
What constitutes a "miscarriage of justice"?
A court can vary or set aside a consent order if it is satisfied that there has been a “miscarriage of justice” under section 79A. This means that the order has been unjustly obtained.
According to Section 79, property orders should include the assets and liabilities of the parties, their financial and non-financial contributions, their current financial circumstances and future needs. These provisions are designed to ensure that parties meet their financial commitments and receive a distribution of the assets which indicates their proper entitlement.
In the case Holland & Holland (1982) FLC 91-243 (at 239), the Full Court said:
“To succeed in an application under s 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under s 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.”
This decision of the Full Court shows that an agreement to a consent order which does not adequately reflect a party’s entitlement under Section 79 does not of itself amount to a "miscarriage of justice."
When is it considered a duress?
A court may set aside consent orders as a "miscarriage of justice" due to the existence of duress. Even though duress is not clear in the Family Law Act, its definition has been regarded by courts in a number of circumstances.
In the case of Crescendo Management Pty Ltd v Westpac Banking Corporation (1988), the court stated:
“A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether the pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct will not necessarily constitute economic duress.”
In the case of Hogan and Hogan (2010), the court considered the need to apply the concept of duress to this family law matter. The wife, in this case, signed consent orders to receive the sum of $58,000 out of a total asset of about $583,000. She provided evidence that the husband had been violent to her, regularly stalked her, and was abusive in calls and text messages. She also received legal advice before signing the consent orders, but not from a solicitor who was experienced in family law.
In this case, the court took into consideration:
What if the wife was overburden with the situation to such a level that she did not give her true consent on signing?
What effect, if any, the husband's conduct had on her that she felt she had no choice but to sign?
Whether the husband’s behaviour was such that it could be considered as illegitimate pressure?
In the final judgment, the court did not consider the husband’s conduct to constitute duress but regarded the distribution of assets to the wife as inadequate. It accepted there had been a "miscarriage of justice" based not on duress, but on a combination of factors under Section 79A(1)(a) constituting “any other circumstance.”
Given the matters highlighted above, it is crucial for both parties to consider whether proposed orders are just and equitable and for them to have independent legal advice from a solicitor who is experienced in family law before applying.
If you need legal advice relating to family law or any other legal matter, please contact the experienced law team of My Legal Crunch.
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