Orders are made two ways in the Family Court of Western
Australia, by consent of the parties or, following determination on
the evidence, as pronounced by the Court. So, when are those Orders
binding? And what if there is a change of mind as to consent or an
appeal is lodged?
Orders by consent
The Family Law Act 1975 (Cth)1 and the
Family Court Act 1997 (WA)2 provide the Court
with the Authority to make Orders by consent of the parties.
Further, Rule 24(b) of the Family Court Rules 1998 (WA)
provides for a Registrar to make an Order in the terms which have
been agreed upon by all the parties.
However, in the event that a party or both parties, following
providing their consent wish to withdraw their consent, the
Family Court Act 1997 (WA)3 provides that a
party to proceedings in which a Registrar has exercised a delegated
power may, within the time prescribed by, or within such further
time as is allowed, apply to the Court to review the exercise of
the delegated power.
The Family Court Rules 1998 (WA)4 provides
that a party to proceedings may apply to the Court to review an
Order or direction made by a Registrar within 28
days after the Principal Registrar, Registrar or Deputy
Registrar makes the said Order or direction.
Ultimately, the effect of the withdrawal of consent will require
an application for review. Further the withdrawal of consent
removes the power or authority for the Registrar to make the
Order5. The result is that Consent Orders cannot be
enforced or maintained following a party withdrawing their consent
within the timeframe required.
In the event that a party decides to withdraw their consent
following forwarding the Consent Orders to the Court but before the
Orders are made, a party can simply, at any time, write to the
Court advising of their withdrawn consent. If the withdraw is
received prior to Orders being made the effect is as if the consent
was never provided in the first place and parties can either
proceed with an Initiating Application or continue negotiations in
an attempt to reach an agreement that both parties are agreeable
As a result of the above, the solicitor will often draft
timeframes into the Orders which provide for settlement to occur on
or after the 28 days of the date of the making or receipt of the
Orders and will often advise clients not to effect settlement prior
to this. Effecting settlement earlier and then receiving advice as
to withdrawal of consent following settlement can often further
complicate matters in attempting to "recover" assets that
may, following determination, otherwise be retained by the other
Withdrawal of consent following the filing of Consent Orders is
not common as the majority of the time consent is provided
following the appropriate disclosure, legal advice and
consideration of entitlements.
Orders following determination
Orders made following determination can be made by either a
Registrar, Magistrate or Judge.
The Family Law Act 1975 (Cth)6 provides a
party with the ability to appeal an Order made, following
determination of the Court, save for an appeal to a Divorce Order,
once the same has been made.7
The timeframe for making such an appeal is set out in
legislation. The appeal is required to be instituted within the
time prescribed by the standard rules of the Court or within such
further time as is allowed in accordance with the standard Rules of
The timeframe as prescribed by the Family Law Rules
2004 (Cth)9 requires an appeal to be filed
within 28 days after the date of the Orders
Accordingly, an Appeal or Application advising the withdrawal of
consent is more often than not filed within 28 days of the making
of the Order however, as the Court can use its discretion and allow
such further time as is allowed in accordance with the standard
Rules of the Court, it is possible for this to occur after this
Generally however, parties can rest assured, 28 days following
the making of the Orders there is only a very slight possibility
that consent will be withdrawn or an appeal lodged in relation to
the Orders made.
2Section 205ZI (1)(j)
4Rule 25 (2)
5 High Court in Harris v Caladine
(1991) FLC 92-217 (at 78,470 per Mason CJ and Deane J, at 78,475
per Brennan J, at 78,487 per Dawson J, at 78,491 per Toohey J, at
78,503 per Gaudron J and at 78,509 per McHugh J and;
Tormsen (1993) FLC 92-392 (at 80,018).
6 Section 94
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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