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

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SIGNED BY THE APPLICANT: _________________________ Date: ___________

SIGNED BY THE RESPONDENT: ________________________ Date: ___________

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