Are They Binding? Family Law Parenting and Property Orders

In Victoria, Orders with respect to parenting issues and/or property matters can be made pursuant to the Family Law Act 1975 (Cth), in either the Federal Circuit Court of Australia, or the Family Court of Australia.

So, when is it binding? When can you appeal? Are you able to withdraw your consent after it has been provided?

A binding Order can be made in either of two ways:

1. By way of Consent Order; or
2. By way of Judgment of the Court.

Consent Order

The Family Law Act provides the Court with the power to make Orders in accordance with the consent of parties. This can either occur:

1. During a litigated matter where proceedings have been issued in either Court and are currently on foot; or
2. During negotiations and when the parties have reached an agreement and have forwarded the Order to the Court without there being proceedings on foot.

If there is a proceeding on foot in either Court and the parties come to an agreement either by themselves or with the assistance of their lawyers they can obtain a Consent Order. This can either be obtained in Court on the day of a Hearing before a Judge (at which stage it becomes binding), or, alternatively, the proposed Consent Order can be forwarded to the Court after being signed by both parties.

Either party has the option to withdraw their consent prior to the Order being pronounced by the Court. This means that if you forward the proposed Order to the Court to make, one party may withdraw their consent prior to the Order being made.

In the event the Order is made by a Registrar of the Court, either party may apply to the Court to review the Order or direction made by a Registrar within 28 days. For this reason, Orders made usually provide for implementation a minimum of 28 days ¹ after the order is made.

Judgment

At the time the Orders are made by way of Judgment they are a binding Order of the Court.

Either party to the matter has the right to appeal the Order and seek a stay of the application of the Orders that were made. The Family Law Rules 2004 (Cth) require an Appeal to be filed within twenty-eight (28) days of the date the Orders were made. ² The Court has discretion to allow an extension to this twenty-eight-day deadline. ³

The Court also has power to vary or set aside a judgment after it is entered under certain circumstances, including but not limited to the following:

1. It was made in absence of a party;
2. It was obtained by fraud;
3. It does not reflect the intention of the Court;
4. There is a clerical mistake; or
5. There is an error caused by an accidental slip or omission. ⁴

Please note this does not include Divorce Orders.

For more information about this or any other family law matters please contact one of our experienced family lawyers on (03) 8393 0144.

1. Family Law Rules 2004 (Cth) r 18.08 (‘FLR’).
2. Ibid r 22.03.
3. Ibid r 1.14.
4. Federal Circuit Court Rules 2001 (Cth) r 16.05; FLR r 17.02.