What are Consent Orders?

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The essence of consent orders is that the parties voluntarily agree on the terms of a resolution, and the court then formalises this agreement by making it an order of the Court. 

Key Features of Consent Orders

1. Agreement: Consent orders are based on the parties’ agreement. This means that both parties come to a mutually acceptable resolution, often with the assistance of legal advice, mediation, or negotiation (directly with each other or with the assistance of lawyers).
2. Court Approval: After the parties agree on the terms, they submit the agreement to the Court. The Court then reviews the terms to ensure they are just & equitable (if property Orders) or in the best interests of the children (if parenting orders and written in a way that can be legally enforced.
3. Binding Legal Effect: Once the Court approves the consent order, it becomes legally binding. This means that the parties must comply with the terms outlined in the order, and failure to do so can result in legal consequences, such as enforcement orders or penalties including make-up time between a parent and child, varying or suspending existing Court orders, requiring attendance at a post-separation parenting program, a bond, fines or imprisonment (depending on the severity and frequency of breach).
4. Applications in Family Law: Consent orders are commonly used in family law, especially for issues such as parenting arrangements, child support, property settlements, and spousal maintenance. They provide a way for parties to resolve matters without the need for a contested trial.
5. Cost-Effective and Less Stressful: One of the key benefits of consent orders is that they are often quicker and more cost-effective than going through a full court trial. They also help to reduce the emotional strain that can arise from prolonged litigation.

Types of Consent Orders:

• Parenting Consent Orders: These orders relate to the care, welfare, and development of children. They can cover issues such as where the child will live and who they will spend time with, who will make decisions about their upbringing, communication arrangements, travel and passport issues.
• Property Consent Orders: These orders settle property disputes, including the division of assets and liabilities between former partners or spouses.
• Spousal Maintenance Consent Orders: These orders relate to financial support paid by one party to the other party in circumstances where that party is unable to adequately support themselves.

Enforcement

If a party does not comply with a consent order, the other party can seek enforcement from the court. In family law, this could mean asking the court to take steps to enforce parenting or financial arrangements.

Process of Obtaining Consent Orders

Negotiation: The parties negotiate the terms they both agree upon. This can be done directly, through lawyers, or with the help of a mediator.

Drafting the Agreement: Once an agreement is reached, it is usually documented in writing, often with the help of a lawyer, ensuring that it is clear and comprehensive.

Application to Court: The signed agreement is then submitted to the Federal Circuit and Family Court of Australia (FCFCOA).  If the matter is not already in Court, then the agreement needs to be accompanied by a completed, signed and dated Application for Consent Orders. If the agreement is about children, a Notice of child abuse, family violence or risk needs to be filed. If the agreement seeks a superannuation splitting order, the Trustee of the relevant superannuation fund must be given at least 28 days’ notice before it can be made.

Court Review: The court examines the terms of the agreement to ensure it is just and equitable (for property orders) and in the best interests of any children involved (for parenting orders). If the court is satisfied, it will make the agreement into a formal consent order.

Order Made: Once the court approves the terms, the agreement becomes an official court order, enforceable by law.

Why Use Consent Orders?

1. Efficiency: They allow parties to resolve disputes without a lengthy court process.
2. Control: Parties have more control over the outcome as they reach the terms of the agreement themselves.
3. Less Stressful: Consent orders can reduce the emotional and psychological toll of going through adversarial litigation.
4. Certainty: Once an order is made, it provides a clear and enforceable resolution to the issue at hand.

Time limits in filing consent orders

You can file an Application for Consent Orders at any point after separation.

If you seek orders in relation to property or financial issues (such as spousal maintenance) you need to file an Application for Consent Orders (if you reach an agreement) or an Initiating Application (if you cannot reach an agreement) within 12 months of a divorce or within two years since the end of a de facto relationship.

If you are seeking property orders outside of the above time limits, you will need to seek leave (permission) of the Court to file the application. An application can only proceed out of time with the consent of both parties or if the Court is satisfied that hardship would be caused to a person of the relationship or a child if leave were not granted. The Court will consider if the person seeking orders has a prima facie case or a real chance of success and if they would experience hardship if court proceedings were not permitted to commence, the length and reasons for the delay, and if the other person would be prejudiced if court proceeding were commenced.

For a more detailed advice on your specific circumstances, we invite you to contact our team.