Consent Orders of No Use If They Can Be Set Aside

18/07/2017

A recent case of Waterman decided by the Full Court of the Family Court in 2017 is a very good example of how the parties to the marriage can end up with very little and the lawyers end up with the greater “slice of the cake”.

It was not necessarily the fault of the lawyers.

Most commentators or lawyers’ message from the case deals only with the legal issues.

The message from our experienced Family Lawyers at Watson & Watson is that care should be taken to ensure that everything that can be done to protect the enforceability of an order or agreement should be done.

As the parties to a property settlement know there are limited assets to be divided between the parties.

In Waterman’s case the parties were in a relationship that spanned almost 30 years commencing in 1983 and they had 2 children one born in 1991 and one born in 1994.  Consent Orders were made in 1998 dealing with the division of assets and other matters.

The parties re-cohabited shortly thereafter and again separated sometime in 2012.  Issues arose as to the effect of the Consent Orders.

The outcome of the case or more importantly many cases thereafter would have been different if the parties to the original Consent Orders had taken more care and complied with the requirements of the Family Law Act.

As has been re-iterated by the Courts including the Family Court, the Full Court of the Family Court and Federal Circuit Court of Australia there is a requirement for proper disclosure of the financial position of each of the parties.

On one reading this case the lack of financial disclosure was utilised as a mechanism to debate the enforceability of the Consent Orders and the effect of those Consent Orders.

This issue engaged the parties, with lawyers in further proceedings initially in which the Judge dismissed the wife’s Application to set aside the original Consent Orders.  A Full Court Hearing decided in 2017 to set aside the initial Judge’s Orders with the effect that the original Consent Orders were set aside, and further determination as to what might be the appropriate outcome.

During this time the assets of the parties had diminished significantly.  During this time the wife was declared bankrupt.

One cannot be certain that the case may have been decided differently if full disclosure had been given.  However one can be certain that the cost in debating the issues would have been significantly less and there would have been a great saving for the parties to the marriage.

If there is a resolution of property matters following separation which could be by Court Order or agreement, properly documented by appropriate Orders or Financial Agreement and thereafter the parties reconcile, different issues arise from those that would have arisen if there was no prior resolution of property matters.  In the event that the new relationship fails this would not normally need a Court case (or cases) relating to the enforceability of the original orders.

As the Consent Orders were set aside Waterman’s case is not completed with the effect that there has been no resolution of what is the appropriate adjustment between the parties in relation to the whole of the 30 year relationship.  This remains for future determination by the Court.  In Waterman’s case, if the Consent Orders were not set aside, one would only need to consider the factual matrix from the date of the reconciliation.  This would be much simpler (and less costly) than reviewing the whole of the matters of the 30 year relationship.  The requirement to give full disclosure, if it is complied with is a protection for both parties not to be embroiled hopefully in such litigation as the unfortunate parties in the Waterman case.

At Watson & Watson we are experienced Family Lawyers concerned with protecting your position so that whatever agreement is reached, if one can be reached, our aim is to protect the position of the parties.

In a further article we deal with a further aspect of the Waterman case which was subject to the decision in 2017.  If this had been the only issue the costs saving for the parties no doubt would have been significant and there would have been some prospect of resolution.

If you have concerns please do not hesitate to contact the experienced Family Lawyers at Watson & Watson. Please call Richard Watson or his Personal Assistant Shereen Da Gloria to discuss your very important matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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