Consent Orders

What are Consent Orders?

Simply put, if you have reached an agreement with your former spouse in relation to parenting and/or property matters, you will want this agreement to be legally binding. To ensure that the agreement is legally binding, that agreement needs to be drafted into “consent orders” and filed in the Family Court of Australia.

If for example you have reached an agreement but do not have that agreement legally binding it holds no legal weight. Hence the importance of “consent orders.”

At Mediations Australia, following your mediation, at your request, we can seamlessly have the agreement drafted into consent orders for you.

Why Choose Mediations Australia for Consent Orders?

Whether or not you have used Mediations Australia or not to reach an agreement in relation to your parenting and/or property-related matters, we can assist you to have the agreement drafted into consent orders.

At Mediations Australia, we’re resolution focussed and for this reason, our lawyers have strong expertise and experience in drafting consent orders for our clients.

Are consent orders enforceable?

Yes, consent orders are legally enforceable once approved and made an order by a court. This is one of the major advantages of consent orders as they codify previously agreed-upon terms into an legally enforceable document.

Enforcement of consent orders stems from the Family Law Act 1975 and related rules and regulations governing family law matters in Australia. Once court-approved consent orders take effect, they carry the same weight and enforceability as other court orders.

If one party breaches the terms outlined in a consent order, the other can initiate enforcement proceedings through court to enforce its implementation. This could involve seeking orders for payment of outstanding amounts or transfers of property as well as other remedies to ensure compliance.

Consent orders cannot easily be amended or varied once approved by a court, making significant alterations or variations more complicated than usual. Any significant alterations must usually be brought before the court and justify them with proof of material change in circumstances or other compelling arguments.

How much does a consent order cost in Australia?

Getting a consent order can feel like navigating a financial jungle. Here’s a breakdown to shed some light on the potential costs involved (remember, these can vary):

• Legal Fees: This can be a big chunk of the cost. If you both hire separate lawyers to handle the negotiation, drafting, and filing, expect fees to vary depending on the lawyer’s experience, your location, and the complexity of your situation. A ballpark figure? Somewhere between $2,000 and $5,000 (or more) per person.

• Reaching an Agreement: Did you use mediation or another alternative dispute resolution (ADR) service to reach your agreement? If so, factor in those costs as well. Mediation fees can range from a few hundred dollars to several thousand, depending on the length and complexity of the process.

• Court Filing Fees: There’s no getting around this one. The current filing fee for consent orders in Australia sits at $170 (ouch, but necessary).

• Unexpected Extras: Depending on your specific situation, there might be additional expenses like property valuations, expert reports, or document preparation fees.

The Good News?

• Some people might qualify for reduced fees or exemptions based on their financial situation.
• Some legal professionals offer fixed-fee packages for consent orders, providing more cost certainty.

The Bottom Line:

Altogether, expect the total cost (including legal fees, mediation, and court fees) to range from $3,000 to $10,000 or more per person. Remember, this is just an estimate, and the complexity of your case and the level of legal help you need will play a big role in the final figure.

Are consent orders worth it?

In most family law situations, getting a consent order is a wise decision. Here’s why:

• Enforceable Agreements: A consent order is a legally binding document, meaning the court enforces the agreed terms if needed. This provides peace of mind knowing everything will be upheld, avoiding further legal wrangling.

• Finality and Clarity: Consent orders bring closure and clear expectations. Once the court approves the agreement, both parties have a definite understanding of their rights and responsibilities, reducing future disagreements.

• Cost-Effective Option: While there are costs involved, obtaining a consent order is generally much cheaper than litigation. Reaching an agreement through negotiation or mediation and finalizing it as a consent order can save significant time and money compared to drawn-out court battles.

• Flexibility and Control: Consent orders can be customized to your specific situation. Unlike court-imposed rulings, they reflect what you and your ex agreed upon, giving you more control over the outcome.

• Preserving Relationships: The collaborative process of creating a consent order can help maintain civility, especially when co-parenting or ongoing interactions are necessary. Working together towards an agreement can foster a more cooperative dynamic moving forward.

• Privacy Matters: Consent orders are typically more private than court proceedings. This can be beneficial if you want to keep personal and financial details confidential.

Consent orders may not always be the ideal solution. They may not work if there is a significant power imbalance, past abuse, or one party is unwilling or unable to negotiate in an equitable manner.

Overall, for parties who can reach an amicable agreement through negotiation or mediation, consent orders can provide an economical, flexible, and legally binding way to settle family law matters.

How long do consent orders take to process in Australia?

The wait time for your consent order in Australia depends on a few things, like how busy the court is and how complex your situation is. On average, it can take anywhere from several weeks to several months to finalize everything. Here’s a simplified breakdown of the timeline:

Reaching an Agreement: This can take weeks or months, depending on how complicated things are and how willing you and your ex are to compromise. Negotiation, mediation, or other methods can help you reach this stage.

Drafting the Order: Once you have an agreement, someone (you or a lawyer) will draft the official consent order document. This typically takes a few days to a few weeks.

Filing with the Court: After it’s drafted and signed by both parties, the order gets filed with the court along with some fees. This usually takes a few days to a week.

Court Review: The court will then review the order to make sure it’s fair for everyone involved, especially any children. This review can take several weeks to a few months depending on their workload and the complexity of your situation.

Getting the Final Order: If the court approves everything, it becomes a final and legally binding order. You’ll both get a sealed copy, which might take another week or two to process and deliver.

So, for a typical, straightforward consent order, expect the entire process to take somewhere between 6 and 12 weeks from the time you file it with the court. Remember, this is just an estimate, and the actual timeframe can vary depending on your specific circumstances.

Do consent orders expire?

Consent orders issued by the Federal Circuit and Family Court of Australia don’t usually come with an expiration date or set time frame, remaining in effect indefinitely until changed or set aside through legal processes.

Consent orders related to property settlement and financial matters are typically considered final and binding, absent extraordinary circumstances that warrant review or modification. This provides certainty and closure for both parties involved, enabling them to move on with their lives without fear that an agreement might unravel in an instant.

However, consent orders related to parenting arrangements – such as those concerning care and living arrangements of children – can be subject to review or variation as circumstances change and circumstances of parties and children change over time. The Family Law Act 1975 recognizes this fact; thus allowing modifications of parenting orders as children grow older in order to accommodate these alterations in best interests of their welfare.

Consent orders often contain provisions or timeframes for review or adjustment, particularly where parties anticipate significant changes to their circumstances within a specified time period. For instance, it might include provisions to review child support payments or spousal maintenance after certain years have passed or upon the occurrence of certain events such as employment changes or income fluctuations.

Consent orders generally do not expire, but can be varied or set aside if circumstances significantly change or it can be demonstrated that they were obtained through fraud, misrepresentation, or failing to disclose relevant information. However, the threshold for doing so tends to be high; compelling evidence must support their request in order for this action to take place.

Can consent orders be overturned?

Consent orders are generally considered final, there are situations where they can be overturned, though it’s a difficult process. Overturning means basically throwing out the entire order, which can be messy and expensive for everyone involved.

Here are some reasons why a consent order might be overturned:

• Lies or Hidden Info: If one party lied or hid important information during negotiations or mediation, and this information would have affected the agreement, the court might overturn the order.

• Pressure or Force: If one party was pressured or forced into agreeing to the order, the court might consider it invalid because it wasn’t truly a willing agreement.

• Court Mistakes: In rare cases, if there were serious errors during the court process, the order might be overturned.

• Life Changes Throw a Curveball: While this wouldn’t necessarily overturn the entire order, significant life changes, like a job loss or a serious illness, could lead to modifications of certain parts, like child support or parenting arrangements.

The key takeaway? Overturning a consent order is a big deal, and the court will expect strong evidence that something went very wrong. If an order is overturned, you and your ex might have to start from scratch with negotiations or even go to court, which can be stressful and expensive. So remember, transparency, honesty, and a clear understanding of the terms are crucial when entering into a consent order.

What is the difference between a binding financial agreement and a consent order?

Both binding financial agreements (BFAs) and consent orders deal with dividing finances and property during family law matters (separation or divorce), but they have key distinctions:

• Purpose and Timing: A BFA is a private agreement created before, during, or after a relationship. It outlines how assets, debts, and spousal support will be handled in a future separation. Think of it as a pre-nup or a plan for dividing things up beforehand. A consent order, on the other hand, is a court-approved agreement made during separation or divorce. It can cover a broader range of issues beyond finances, including child custody and support arrangements.

• Legal Requirements: BFAs have stricter legal rules. They must be written, signed by both parties, and involve independent legal advice for each person with a confirmation statement attached. Consent orders require court approval, but the legal formalities are less strict. The court will still ensure the agreement is fair for everyone involved.

• Enforcement: Both are enforceable by law, but BFAs might be easier. Since they’re private agreements, enforcement usually doesn’t involve the court unless someone challenges their validity. Consent orders, being court orders, can be enforced through the court system if someone breaches the agreement.

• Flexibility: BFAs offer more flexibility. They can be tailored to specific needs and include provisions that might not be allowed in a consent order, like terms concerning future finances or relationships. Consent orders have some flexibility, but the court will make sure the terms are fair and prioritize the well-being of any children involved.

• Finality: BFAs are generally considered more final. Since they’re voluntary agreements made outside of court, they’re harder to change. Consent orders are binding but can be modified under certain circumstances, like a significant change in finances or a child’s needs.

In a nutshell:

• BFA: Private agreement for future separation, more flexible, but stricter legal requirements.
• Consent Order: Court-approved agreement during separation, broader scope, less strict formalities.

The best choice depends on your specific situation, timing, and individual needs. Always consult with a lawyer to determine the best course of action for your family law matters.

We’re Close to Reaching an Agreement. Can Mediations Australia Help?

Yes, we sure can.  We help many people involved in family law disputes who are close to an agreement but need a mediator to assist with the finer or closing details.  This may be achieved in a few hours.  Once we have assisted you and your former partner reach an agreement, we will then be able to take care of the drafting of the consent orders.

What are the Benefits of Consent Orders?

As stated previously, consent orders are essential once you and your former partner have come to an agreement regarding parenting and/or property matters. Consent orders make your agreement legally binding. If you don’t have a legally binding agreement, then you have no recourse if your former partner breaches that agreement. Conversely, if you have consent orders and your former partner breaches those orders or a condition within the order, they in effect have breached a court order that can have serious ramifications for them.

Consent Orders are a common-sense way of ensuring the agreement is abided by.

Can We Do Our Own Consent Orders?

Sure. You can do this and there are downloads on the Family Court of Australia website. But you need to understand the importance of this documented agreement. It is a contract and it is our recommendation that it be treated as such. This means that you should have a qualified lawyer draft consent orders for you to minimise the risk of them being incorrect and potentially not accepted by the court.

By having consent orders legally drafted you can rest assured that the orders are an accurate depiction of your agreement.

Consent Orders for Property and/or Parenting Matters

Consent Orders typically include matters relating to property or parenting.

In relation to Children’s Orders, Consent Orders may include:

• Parenting arrangements between the parents of the child or children;
• Who has parental responsibility;
• Travel arrangements of the child or children;
• Relevant times and days etc for changeover of the child or children.

Financial Orders can include things such as:

• What happens to the family home;
• What happens to all the other assets (including superannuation);
• How the debts will be managed etc
• Any other financial matters that derive from the relationship.

As you can see, consent orders often have a big job to do. Ensuring that they are correctly drafted and embody the full agreement is fundamentally important. The last thing you need is to have consent orders that do not cover off everything. By getting them wrong not only can be very expensive to fix, but you may find that particularly in relation to parenting matters if the consent orders are filed, you may not be able to amend them.

Applying for Consent Orders

The term “applying for consent orders” simply means the process of drafting and filing the “consent orders” in the court.

But very importantly, there are strict times limits in applying for consent orders.

You have to file an Application for Consent Orders following separation but it should be filed within 1 year of a divorce or two years following the end of a de facto relationship.

If you are outside the time limits for either of these matters, you will need to seek leave of the Court to file your consent orders.

Talk to the team at Mediations Australia about applying for consent orders.