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Is there a difference between Court Order and Consent Orders

When is Rice and Asplund Rule applied

I'm interested to find out when Rice and Asplund Rule is applied.

For example, I have just signed Final Orders by consent. The final hearing was listed for next week. At the interium hearing we also signed Orders by consent and they were presented on the day to the judge/magistrate and (I think this is the right terminology) sealed.

The first thing I would like to know:

Under which circumstance the rule is used for (eg: Court Orders/Consent Orders/Parenting plans) so I can understand whether the changes outlined in Rice and Asplund Rule would apply should he want to lodge an application to the court down the track. Does that fact that evidence has not been heard in the court room and the judge did not make the Orders (ie: Court Order) have any bearing on whether Rice and Asplund Rule could be applied down the track should the other parent want to lodge an application to increase time because the child has started school and is older?

The second question I have is:

I was the applicant in this case. Does it matter who is the applicant and who is the respondant?
I don't believe that there is a legal difference between a Judge/Magistrate determined set of Orders or Orders by Consent. Orders by Consent have the same legal force behind them as if they were made by a Judicial Officer i.e. the Judge/Magistrate.

So, I would imagine Rice and Asplund would still apply i.e. A parent would need to prove a significant (and unforeseeable) change in circumstances that undermines the ability to care for the child/ren to have the case re-opened. The kids starting school, re-marriage, new half-siblings are not significant change in circumstances because they are a part of everyday life and are predictable occurrences however, say you go over to your ex's house to get the kids and he's on the floor with a needle sticking out of his arm… that would be a significant change in circumstances, significant enough to warrant review.  Keep in mind that contraventions count too, so don't muck around with those if you don't want a review.

At least thats what I was told by my lawyer.

You get the drift - I believe it is very hard to have the Orders overturned once they are made.

As for Parenting Plans: They have no legal weight behind them, therefore - are non-binding agreements.
There is much on the site about this very issue. I will take this opportunity to say so before one poster of note jumps in!!  :wub:

There is also an extremly good page which is used by a number of Government Agencies that is available off the Search engine and probably the second post down in the search returns…

Parenting Plans are traditionally more informal agreements between the parties and may also contain statements about their intentions toward the children …   and there is a  very comprehensive chart.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
There is a 28 day cooling off period for orders by consent.
Fairgo said
There is a 28 day cooling off period for orders by consent.
 
RUBBISH - where did you get that way out idea from?
Consent Orders are reviewed by a judge under the concept of "Res Judicata".


That being:



(1)  :a thing, matter, or determination that is adjudged or final: as
a: a claim, issue, or cause of action that is settled by a judgement conclusive as to the rights, questions, and facts involved in the dispute
b: a judgment, decree, award, or other determination that is considered final and bars relitigation of the same matter

also the barring effect of such a determination


So yes - the Rice & Asplund hurdle applies to consent orders

4MYDAUGHTER
Hrm - don't know if its a jurisdictional thing but in WA Consent Orders are extracted as Orders by a Registrar in Chambers, not a Judge. As a result, in million dollar + matters (i.e. when those Consent Orders must be water tight), we specially request that Orders be extracted by a Judge in Chambers just to give them added strength/eforceability. Either way the hurdle applies to all judicial detminations.
Yes. Consent orders could be made in a variety of contexts. They could be made before a judge in a final hearing if the parties agree on matters before the Judge is asked to make a final determine of competing applications.

My recent magellan matter was resolved by consent orders on day 5 of the final hearing before the Mother was due to be cross-examined by me. All the issues before the Court in that matter were resolved by consent and those same issues can't be re-litigated again in the future.

Last edit: by 4mydaughter


4MYDAUGHTER
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