I’ve agreed to orders but I’ve changed my mind
Litigation is stressful and parties are often asked to make compromises at court in order to achieve a settlement. However, it is not uncommon for one party to change their mind when they are no longer under the time pressure of being at court.
When can you withdraw your consent?
The recent case of Melville & Melville (No. 3) [2020] FamCAFC 231 dealt with this exact issue. In this matter, the father sought to appeal final property and parenting orders which were made by consent.
The matter had proceeded to trial over a period of 6 days. The father was represented by solicitors and counsel when it settled on the sixth day of trial on 10 October 2019 and final parenting and property orders were made by consent that day.
On 22 October 2019 at 9.10am, the father sent an email to the court withdrawing his consent to the orders. Although the orders had been made on 10 October, they had not yet been entered by the court. The orders were entered at 3.04pm on 22 October (parenting) and 11.43am on 23 October (property), without the father being provided the opportunity to have a hearing and make submissions as to the basis of his withdrawal of consent.
Rule 16,05(1) of the Federal Circuit Court Rules provides “The Court of Registrar may vary or set aside a judgement or order before it has been entered.” However, there is no guiding criteria. All parties accepted that the father’s email revoking his consent was received prior to the ‘entry’ of the orders. The relevant question before the court was whether the primary judge ought to have provided the father the opportunity to be heard on the issue before the orders were entered.
The appeal was dismissed, noting that:
- The father was not denied procedural fairness as an email to chambers did not place an obligation on the court to provide the father a hearing. The father should have filed an Application in a Case.
- Rule 16.05(1) is discretionary and “may only be exercised in limited circumstances having regard to the public interest in maintaining the finality of litigation. Beyond the correction of orders for errors, it is not consistent with the finality principle that the discretion is legitimately engaged to revisit consent orders simply because a party asserts a change of mind or that consent is withdrawn.” (paragraph 69 of the Judgement).
In any event, the full court noted that the final parenting and property orders were unlikely to be deemed as being outside the ambit of what is just and equitable or against the children’s best interests.
What does this mean for me?
The case of Melville highlights the importance of ensuring you understand and accept the orders that you agree to enter in to. Orders should not be entered into without parties understanding what they are signing themselves up for.
If you are dissatisfied with your orders and would like to discuss your options or, you would like further information about an appropriate settlement please contact Sage Family Lawyers on 03 9070 9839 or info@sagefamilylawyers.com.au
