Consent Orders

What Are Consent Orders in Australian Family Law?

Definition
Consent orders are legally binding agreements made by parties to a marriage or de facto relationship and approved by the Family Court. According to Section 90B of the Family Law Act 1975 (Cth), these orders cover various family law matters such as parenting arrangements, property settlements, and spousal maintenance (Australian Government, 1975).

Once approved by the Family Court, consent orders possess the same legal force as those issued after a court hearing, meaning that non-compliance could result in enforcement action. This serves as a crucial feature, providing the parties with legalized clarity and protection.

Consent Orders Example at bottom of page.

Example Scenarios for Using Consent Orders

Parenting Arrangements

Consider two parents, Alex and Jamie, who are navigating the complexities of shared parenting following their separation. After negotiations, they reach a consensus on a parenting plan that stipulates equal time sharing of their two children: one week with Alex and the following week with Jamie.

Property Settlements

Imagine Sarah and Tom, who recently divorced and need to divide their shared assets. They agree to sell their investment property, with the proceeds split evenly, and subsequently arrange for the equitable distribution of their superannuation interests. Their agreement can be formalized through consent orders to provide legal protection and clarity.

Spousal Maintenance

In another case, a stay-at-home parent, Lucy, seeks financial support from her ex-partner after their divorce. After negotiations, they agree upon periodic payments for a defined duration to support her transition back into the workforce. This arrangement can also be captured in consent orders.

Legal Requirements for Valid Consent Orders

To ensure consent orders are valid and enforceable, the following legal requirements must be adhered to:

Written and Signed Agreements

Consent orders must be documented in writing and signed by both parties. This requirement emphasizes the importance of mutual agreement and comprehension of the terms.

Court Approval

The Family Court must approve the consent orders as being just and equitable concerning the parties’ current circumstances. The court’s role is to ensure that the agreements serve the best interests of any children involved, particularly in parenting matters.

Variations and Significant Change in Circumstances

Once consent orders are made, they can only be varied under specific circumstances. The landmark case of Rice v Asplund [1978] FamCA 84 established that parenting orders made by consent can be amended only if there is a significant change in circumstances. Hence, it is prudent for parties to consider the long-term implications of their agreements (AustLII, 1978).

Checklist for Ensuring Validity and Enforceability

1. Mutual Agreement: Ensure both parties fully agree on and understand the terms.
2. Legal Drafting: Consider seeking professional legal assistance to draft the consent orders clearly and comprehensively.
3. Full Disclosure: Parties must provide complete financial disclosure to avoid claims of fraud or misrepresentation.
4. Best Interests of Children: Any parenting order must prioritize the well-being of the child involved, in line with the Family Law Act.

Advantages of Using Consent Orders

Utilizing consent orders provides several benefits that contribute to a more amicable resolution of family law matters:

Certainty and Finality

A primary advantage of consent orders is that they provide clear, legally binding resolutions to disputes. This certainty allows parties to proceed with their lives without ongoing uncertainty over parental or financial obligations.

Avoiding Costly Litigation

Negotiating consent orders can significantly reduce the need for protracted litigation. This leads to decreased legal costs, emotional strain, and delays in reaching resolution.

Flexibility to Tailor Outcomes

Unlike court-imposed orders that are strictly based on legal principles, consent orders allow parties to negotiate terms that best suit their unique circumstances, promoting collaborative problem-solving.

How to Apply for Consent Orders

Navigating the application process for consent orders involves several clear steps:

1. Negotiation of Terms: Engage in discussions with your ex-partner, potentially with the aid of mediation, to reach an understanding on key issues.
2. Draft the Orders: Prepare the proposed consent orders in writing, ensuring that all relevant terms are captured.
3. Complete Application Forms: Fill out the required application forms, including the Application for Consent Orders and attaching the draft orders.
4. Sign and File the Application: Both parties must sign the documents before submitting them to the Family Court along with any necessary supporting documentation and payment of fees.
5. Await Court Review: The Family Court will review the application, and if satisfied that it meets legal standards, will approve the consent orders.

To facilitate effective negotiations, it is advised to remain open and transparent, prioritize communication, and consult legal professionals when necessary.

FAQs About Consent Orders

What if One Party Breaches the Consent Orders?

A breach of consent orders can prompt the aggrieved party to seek enforcement through the Family Court. This may involve filing a contravention application that details the breach, where the court can issue compliance orders or applicable penalties.

Can Consent Orders Be Changed in the Future?

Yes, consent orders can be varied, but only under certain circumstances. For parenting orders, significant changes in circumstances backed by evidence must be demonstrated, following the principle established in Rice v Asplund.

Are Consent Orders Public Records?

Consent orders filed with the Family Court form part of the court records. Access to such records is generally limited to involved parties and their legal representatives. However, it is essential to understand that maintaining privacy may not always be possible.

How Long Does the Process Take?

The timeframe for securing consent orders varies on the complexity of the issues and the parties’ ability to reach an agreement. Generally, the process takes several weeks to a few months from application filing to court approval.

Next Steps for Finalizing Your Consent Orders

For those considering utilizing consent orders, it is vital to understand the associated legal requirements, implications, and benefits. It is highly advisable for individuals to seek independent legal advice to ensure their rights, interests, and needs are adequately represented.

By being well-informed and adequately prepared, parties can navigate the consent order process with greater confidence and enhance their ability to resolve family law issues constructively.

Resources for Further Information and Support:

• Family Court of Australia
• Family Relationships Online
• Law Society of your state or territory (for referrals to family law solicitors)

In conclusion, consent orders not only provide a structured framework for resolving family law matters but also empower separating parties to negotiate terms that fit their unique situations. By carefully crafting and formalizing these agreements, individuals can look forward to a more stable and predictable future.

 

FILE NUMBER: [File Number]

COURT: Federal Circuit and Family Court of Australia

REGISTRY: [Registry Location]

APPLICANT: [Full Name]

RESPONDENT: [Full Name]

THE COURT ORDERS BY CONSENT:

PARENTING ORDERS

1. That the Applicant and the Respondent shall have equal shared parental responsibility for the child/children of the relationship, namely:
   • [CHILD 1 FULL NAME], born [DOB]
   • [CHILD 2 FULL NAME], born [DOB]
2. That the children shall live with the Applicant and spend time with the Respondent as follows: a) During school terms: i. Week 1: from after school on Friday until 5:00pm Sunday ii. Week 2: from after school on Wednesday until school commencement on Thursday b) During school holidays: i. Half of all school holiday periods, with the precise dates to be agreed between the parties in writing at least 14 days prior to the commencement of each holiday period. ii. In the absence of agreement, the first half of each school holiday period in odd-numbered years and the second half in even-numbered years.
3. That the children shall spend time with each parent on special occasions as follows: a) On the children’s birthdays, they shall spend time with the Applicant in even-numbered years and with the Respondent in odd-numbered years. b) On Mother’s Day, the children shall spend time with the Applicant from 9:00am to 5:00pm. c) On Father’s Day, the children shall spend time with the Respondent from 9:00am to 5:00pm. d) During the Christmas period: i. In odd-numbered years, the children shall spend time with the Applicant from 2:00pm on 24 December until 2:00pm on 25 December, and with the Respondent from 2:00pm on 25 December until 5:00pm on 26 December. ii. In even-numbered years, the arrangements shall be reversed.
4. That changeovers shall occur at [SPECIFIC LOCATION] unless otherwise agreed in writing between the parties.
5. That each parent shall be responsible for collecting the children at the commencement of their time with the children.
6. That each parent shall keep the other informed of their current residential address, contact telephone numbers and email address.
7. That each parent shall promptly advise the other of any serious illness, accident, hospitalization or other emergency involving the children when the children are in their care.
8. That each parent is authorized to make decisions regarding the day-to-day care, welfare and development of the children when the children are in their care.

PROPERTY ORDERS

9. That within 28 days of the date of these Orders, the Respondent shall transfer to the Applicant all of his/her right, title and interest in the property situated at and known as [PROPERTY ADDRESS] (“the Property”).
10. That upon transfer of the Property pursuant to Order 9: a) The Applicant shall be solely responsible for payment of the mortgage, rates, taxes and outgoings on the Property. b) The Applicant shall indemnify and keep indemnified the Respondent in respect of any liability relating to the Property.
11. That within 28 days of the date of these Orders, the parties shall do all things necessary to transfer ownership of the following vehicles: a) [VEHICLE 1 DETAILS] to the Applicant b) [VEHICLE 2 DETAILS] to the Respondent
12. That the Respondent shall retain the following superannuation interests: a) [SUPERANNUATION FUND NAME], Member No. [MEMBER NUMBER]
13. That the Applicant shall retain the following superannuation interests: a) [SUPERANNUATION FUND NAME], Member No. [MEMBER NUMBER]
14. That a superannuation splitting order be made in relation to the Respondent’s [SUPER FUND NAME] pursuant to which: a) The Trustee of [SUPER FUND NAME] shall pay to the Trustee of [APPLICANT’S SUPER FUND] for the benefit of the Applicant, an amount equal to [PERCENTAGE/AMOUNT] of the Respondent’s interest in the fund.
15. That each party shall retain all household items, personal effects and chattels currently in their possession.
16. That upon compliance with these Orders, each party releases and discharges the other from all claims of a financial nature under the Family Law Act 1975 (Cth) or otherwise, and these Orders shall constitute a full and final property settlement between the parties.

FINANCIAL SUPPORT

17. That each party shall be responsible for their own financial support, and neither party shall be liable to pay spouse maintenance to the other.
18. That the Respondent shall pay to the Applicant child support for the children in accordance with the Child Support (Assessment) Act 1989 as assessed by the Child Support Agency.

GENERAL PROVISIONS

19. That for the purpose of giving effect to these Orders, each party shall sign all documents and do all things necessary to give full effect to these Orders.
20. Liberty to apply in relation to the implementation of these Orders.

DATED: This [DAY] day of [MONTH] [YEAR]

REGISTRAR

---

SIGNED BY THE APPLICANT: _________________________ Date: ___________

SIGNED BY THE RESPONDENT: ________________________ Date: ___________

SIGNED BY THE INDEPENDENT CHILDREN’S LAWYER (if appointed): _________________________ Date: ___________

How Long Do Consent Orders Take in Australia? A Comprehensive Guide

Consent orders are legally binding agreements approved by the Family Court of Australia under Section 90D of the Family Law Act 1975 (Cth). These orders are made with the mutual agreement of both parties involved in a family law matter, such as divorce or separation.

When parties reach an agreement on the terms of their settlement, they may seek consent orders to formalize arrangements regarding various issues such as property settlements, parenting arrangements, and spousal maintenance. Securing court approval for the agreement provides both parties with certainty and finality, ensuring that the terms become legally enforceable.

Legal Framework for Consent Orders in Australia

Under Section 90D of the Family Law Act 1975 (Cth), parties to a marriage or de facto relationship can file an application for the court to make consent orders in accordance with their written agreement. The court must be satisfied that the orders are “just and equitable” based on the information provided.

A pivotal case in this context is Harris & Dewell and Anor [2018] FamCAFC 94, which clarified that when assessing consent orders, the court must consider whether the orders are fair to the parties involved. This benchmark serves as a guiding principle for the courts to evaluate the specific terms being proposed by the parties.

How Long do Consent Orders Take: Factors Affecting the Time Frame

The timeframe for obtaining consent orders can greatly vary and depends on several key factors, which should be understood by both legal professionals and their clients.

Complexity of the Agreement

The legal complexity inherent in the agreement is one of the most significant factors influencing the time frame for obtaining consent orders. When agreements involve sophisticated financial arrangements—such as those dealing with businesses, trusts, or superannuation funds—additional time may be required for drafting, negotiation, and court approval.

Similarly, arrangements related to child custody that fall outside standard procedures could necessitate more extensive discussions and revisions. Ensuring thorough and clear terms in complex agreements will ultimately lead to a smoother consent order process.

Correct Filing of Required Documents

Properly filing all necessary documents is crucial for preventing delays in the consent order process. The Family Court of Australia mandates specific requirements concerning the format and content of the consent order application. Incorrectly completed or incomplete submissions can lead to rejection of applications, resulting in further delays.

Parties preparing consent orders should utilize available checklists and guidelines designed by the Family Court. Taking proactive steps to ensure all documents are correctly filed can significantly streamline the application process.

The Court’s Workload and Processing Times

The workload of the Family Court can also impact the duration required to obtain consent orders. The volume of applications received by the court can fluctuate, causing delays. According to available information, the court generally processes consent order applications within a timeframe of 4-12 weeks from the date of filing, although this estimate may vary depending on current workloads and case complexities.

Legal professionals should remain cognizant of potential delays and keep their clients informed about the status of their applications by regularly checking with the court registry for the latest processing information.

The Consent Order Application Process: Step by Step

Ensuring clients understand the steps involved in applying for consent orders can facilitate a smoother experience throughout the process.

Drafting the Terms of the Agreement

Initiating the consent order process requires drafting clear terms outlining both parties’ agreements. The agreement should comprehensively address the division of assets and liabilities, any spousal maintenance provisions, and detailed parenting arrangements.

A well-drafted consent order utilizes straightforward language and explicitly states all relevant terms, reducing the likelihood of disputes later on.

Filing the Application with the Court

Once the agreement terms are settled, parties must file the application with the Family Court of Australia using prescribed forms. This includes:

1. Application for Consent Orders (Form 11)
2. Draft Consent Orders in the required format
3. Affidavit from each party detailing financial circumstances
4. Superannuation Information Form (if relevant)
5. Notice of Child Abuse, Family Violence, or Risk (if applicable)

Filing can occur online through the Commonwealth Courts Portal or in-person at a family court registry, with the requisite fees being applicable unless exemptions are warranted.

The Court’s Review and Approval Process

Following the application submission, the court’s review is critical to determining whether the proposed orders are just and equitable. Various considerations come into play, including each party’s financial circumstances, contributions during the relationship, future needs, and the best interests of any children involved.

If the court confirms satisfaction with the agreement, it will issue the orders as requested. Should further information be required, the court might call for supplementary documentation or set a hearing date.

Receiving the Approved Consent Orders

The court will provide each party with a sealed copy of the approved consent orders. These orders take effect from the date specified barring any contrary indications. All parties should meticulously review the sealed orders to ensure alignment with agreed terms. Any errors should be promptly addressed with the court registry.

Special Circumstances and Exceptions

While many applications follow a standard process, certain special circumstances can affect how consent orders proceed.

Urgent Applications

In cases where rapid resolution is necessary—due to risk of asset dissipation or imminent danger to a child—parties may pursue urgent applications. These applications necessitate submitting a sworn affidavit outlining the urgency. The court prioritizes such matters, often processing them more rapidly than standard filings.

Amendments and Appeals

Should a need arise to amend existing consent orders, an application must be submitted seeking the court’s permission for any variations. This is generally allowed in limited circumstances, such as significant changes in circumstances or impracticality of existing orders.

If a party believes the consent orders are unjust, they may seek to appeal the orders, but this process can be lengthy and necessitates engaging legal counsel to navigate the complexities of the family law appeal process.

Frequently Asked Questions About Consent Order Timeframes

Can I expedite the consent order process?

While no method guarantees expedited processing, parties can take steps to minimize delays, such as:

1. Ensuring all documentation is complete and correctly prepared before submission.
   • Double-check that all required forms are included and properly filled out
   • Verify that financial disclosures are comprehensive and up-to-date
   • Ensure the proposed orders are clearly written and legally sound
   • Have a legal professional review your documents before submission
2. Promptly responding to any requests for further information from the court.
   • Set up notifications for court communications
   • Maintain regular contact with your legal representative
   • Prepare any commonly requested additional documents in advance
   • Keep detailed records of all correspondence with the court
3. Collaboratively addressing disputes with the other party during the negotiation phase.
   • Consider using mediation services early in the process
   • Focus on reaching reasonable compromises
   • Document all agreements in writing to prevent misunderstandings
   • Maintain respectful and open communication channels
4. Seeking assistance from seasoned family law professionals for efficient application preparation.
   • Consult with lawyers who specialize in consent orders
   • Consider engaging a collaborative law practitioner
   • Utilize court-approved document preparation services where available
   • Attend court information sessions about the consent order process
5. Utilizing online filing systems when available
   • Electronic filing often processes faster than paper submissions
   • Ensure all electronic documents meet court formatting requirements
   • Keep digital copies of all submitted materials
   • Check submission status regularly through online portals

What happens if there are delays in obtaining consent orders?

Delays can lead to frustration, but it is essential to remain patient and focused on achieving the final goal.

1. Impact of delays:
   • Extended uncertainty regarding legal rights and responsibilities
   • Potential emotional stress on all parties, including children
   • Possible financial implications if property matters remain unresolved
   • Risk of deteriorating relationships between parties
2. Managing the delay period:
   • In some instances, interim arrangements might be necessary to manage responsibilities during the waiting period for orders
   • These can include informal or formal temporary agreements on parenting schedules
   • Written interim financial arrangements may help manage shared assets or liabilities
   • Regular check-ins between parties can help maintain stability
3. Addressing causes of delays:
   • If delays arise from party disputes, parties may need to engage in further negotiations or mediation
   • Court administrative backlogs may require patience and regular follow-up
   • Incomplete documentation can be remedied by prompt submission of requested materials
   • Procedural issues might require consultation with a legal professional
4. When to seek intervention:
   • If delays become excessive (beyond typical processing timeframes)
   • When urgent matters arise during the waiting period
   • If one party is not adhering to interim arrangements
   • When circumstances significantly change during the delay period

How long do consent orders remain in effect?

Consent orders are legally binding and remain in effect until varied or overturned.

1. Parenting orders:
   • They typically remain actionable until the child turns 18
   • May be superseded if new orders are put in place
   • Can be modified if there is substantial change in circumstances affecting the child’s welfare
   • Courts generally prefer stability unless modification clearly benefits the child
2. Property settlements:
   • Are seen as final but may be modified in rare situations
   • Exceptional circumstances for modification include:
     • Significant changes in circumstances that could not have been foreseen
     • Judicial error or miscarriage of justice
     • Evidence of fraud, duress, or non-disclosure during the original process
     • Technical defects in the original orders
3. Enforcement considerations:
   • Orders remain enforceable through court mechanisms for their duration
   • Breaches can result in legal consequences including fines or compensatory measures
   • The court retains jurisdiction to address compliance issues
   • Parties should maintain records demonstrating adherence to order terms
4. Review and variation process:
   • Parties seeking to change existing orders must generally demonstrate material change
   • The modification process typically requires filing a formal application
   • Courts apply the “best interests” test for children’s matters
   • The threshold for modifying property settlements is significantly higher than for parenting orders

Next Steps: Navigating the Consent Order Process

Acquiring consent orders can be intricate and demanding but, with prudent planning, a resolution can be reached.

Seeking Legal Advice and Assistance

Given the complexities of family law, seeking independent legal advice is paramount. We can can provide crucial guidance on agreement terms, application drafting, and representation throughout the process.

Gathering Required Documents and Information

To ensure the smooth processing of consent order applications, parties should gather all necessary documentation and pertinent information before filing. Utilizing the Family Court’s comprehensive checklist can help facilitate this process.

Staying Informed and Engaged Throughout the Process

Finally, it is imperative for parties to remain engaged throughout the consent order procedure. Ongoing communication with legal representatives, timely responses to requests, and vigilant tracking of deadlines are all important for a successful outcome.

Conclusion

In summary, obtaining consent orders in Australia involves understanding the legal framework, application process, and potential obstacles to achieving an efficient resolution. By adhering to the outlined procedures, being aware of timelines, and seeking legal assistance when necessary, parties can navigate the application process for consent orders effectively.

Consent orders typically take between 4-12 weeks for processing, but patience remains essential as parties await formalization of their agreements, all while keeping their long-term objectives in focus.