CONSENT ORDERS

Our Principal Solicitor is an Accredited Specialist in Family Law and a former Registrar of the Family & Federal Circuit Courts of Australia.

Consent orders are court orders made by agreement. You and your former partner agree on the terms, and the Federal Circuit and Family Court of Australia approves them. Once made, they are legally binding and enforceable in the same way as orders made by a judge after a hearing, but you reach them without a contested court case and usually without attending court.

Consent orders can deal with parenting arrangements, property and financial matters, or both. They suit married and de facto couples (including same-sex couples) who have reached agreement and want to make it final.

What can consent orders cover?

Parenting orders can set out:

• Who the children live with and how much time they spend with each parent
• How major long-term decisions are made, such as schooling, health and religion
• Arrangements for school holidays, birthdays, Christmas and other special occasions
• How the children communicate with each parent, and changeover arrangements
• Travel, including international travel with the children

Financial orders can set out:

• How property is divided, including the family home, investments, vehicles and business interests
• Who is responsible for debts such as the mortgage, loans and credit cards
• Superannuation splitting between the parties
• Spousal maintenance

Child support is usually handled separately through Services Australia. Read more about child support.

What the Court looks at before approving consent orders

The Court does not simply stamp an agreement. Before making consent orders it must be satisfied that:

• Property orders are just and equitable, having regard to matters such as each party’s contributions and their current and future circumstances
• Parenting orders are in the best interests of the children, including their safety

The application asks about any family violence or risk of harm to the children, and the Court takes this into account. If the proposed orders appear unfair to one party, or are unclear or unworkable, the Court can ask for more information or refuse to make them.

Consent order applications are usually assessed by a Registrar of the Court. Our Principal Solicitor is an Accredited Specialist in Family Law and a former Registrar of the Family & Federal Circuit Courts of Australia.

How to apply for consent orders

1. Reach agreement. This may happen directly between you, through lawyers, or with help from family dispute resolution and mediation.
2. Exchange financial disclosure. For property matters, both parties have a duty to give full and frank disclosure of their assets, liabilities, income and superannuation.
3. Draft the proposed orders. The orders need to be precise and workable, because they are what you will both have to follow.
4. Complete the Application for Consent Orders. Both parties sign the application and the proposed orders.
5. Notify the superannuation fund if the orders split super. The trustee must be given notice of the proposed orders before the Court makes them.
6. File with the Court and pay the filing fee. The Court reviews the application and either makes the orders or asks for more information.

In most cases neither party needs to attend court.

Time limits for property consent orders

Property applications should be filed within 12 months of a divorce order taking effect, or within 2 years of the end of a de facto relationship. If you are outside these limits, get advice about whether and how you can still apply.

You do not need to be divorced before applying for consent orders, so you can finalise arrangements as soon as you reach agreement.

Consent orders, parenting plans and binding financial agreements

A parenting plan is a written agreement about the children, signed and dated by both parents. It is flexible, but it is not legally enforceable. Consent orders are enforceable.

A binding financial agreement (BFA) is a private agreement about property and finances that is not approved by the Court. Each party must get independent legal advice before signing. With consent orders, the Court checks that the division is just and equitable before making the orders. The right option depends on your circumstances, and we can advise which suits you.

Can consent orders be changed?

Parenting orders can be changed by agreement through new consent orders, and a later parenting plan can also affect how existing orders operate. If you cannot agree, you may need to apply to the Court and show a significant change in circumstances.

Property orders are intended to be final. The Court can set them aside only in limited situations, such as fraud, failure to disclose assets or a miscarriage of justice. That is why it matters to get property orders right the first time.

Do I need a lawyer for consent orders?

You are not required to have a lawyer. However, orders that are unclear or incomplete can be delayed or refused, and they can cause disputes years later. A lawyer cannot act for both parties in a family law matter, so each of you should get your own advice.

Soden Legal helps clients across Macarthur, the Illawarra and Penrith negotiate agreements, draft consent orders and file them with the Court. For related matters see property settlement and parenting arrangements, or view our fees. To talk to our family lawyers, book a confidential consult on 1300 155 005.