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to the Court but before the Orders are made, a party can simply, at any time, write to the Court advising of their withdrawn consent.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 to.
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 party.
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 Court8.
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 made.
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 time.
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.
Footnotes
1Section 80(1)(j)
2Section 205ZI (1)(j)
3Section 33(8)
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
7Section 93
8Section 94(1A)
9Rule 22.03
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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