You agree to end the litigation… but is it really over?

Posted on February 15th, 2018

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Most family law matters resolve by agreement.  Former spouses/partners realise that there is much to be gained from ‘determining their own destiny’ instead of leaving such major decisions as parenting arrangements for their children, or division of their assets to a Judge; someone who does not know them or their children.

However, once the Terms of Settlement are signed, and the Judge formally makes the Order, is that the end?  Usually – yes.  Always – no. 

One such example was considered by the Full Court of the Family Court in the matter of Darley & Darley [2016].  In that case the parents decided to end their litigation and agree to parenting orders for their children.  After the Orders were made, the mother (having a change of heart) appealed the Orders claiming that the Judge had placed undue duress and influence on the parties to settle, and had not appropriately addressed certain evidence.

The Full Court confirmed that Orders made by consent are open to be appealed; however the basis on which they can be appealed is much narrower.  Here, the Full Court dismissed the arguments relating to the treatment of the evidence, as the Judge had not adjudicated the evidence, instead accepting the parties’ request to make the Orders by consent.  As to the allegation of duress / influence, the Full Court determined that any encouragement by a Judge for parties to explore settlement is in line with the contemplation of the Family Law Act, and is consistent with the Judge’s duties.


Ashleigh John, Associate Director at Mullane & Lindsay Solicitors, NewcastleAshleigh John is an Associate Director and Accredited Specialist at Mullane & Lindsay Solicitors and practices extensively in Family, Relationship and Matrimonial LawIf you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.

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