Consent Orders

A consent order is an order made by a court, with the consent of both partners, about their property, financial affairs, or the continued parenting of both their children. These orders can be created from a written agreement between the two parties, if the divorce is amicable enough that such an agreement exists, or it can be created by the court to resolve a dispute between the two partners concerning a piece of property, their finances, or the custody of their children.

Unlike other court orders, consent orders are legally binding and very rarely modified or terms revisited at a later date, except under extreme circumstances. These extreme circumstances can include:

●       Discovery of abuse. For example, physical abuse of children by one party would likely result in the overturning of a joint custody order issued by the court.
●       Changes in financial status. For example, a lottery win or inheritance monies may change the status of a financial payment agreement issued by a court.
●       Provable fraud or misrepresentation in the initial order terms would likely make that initial order null and void, causing there to be a need for new consent orders to be drafted.

The extremity of these circumstances means that consent orders are generally seen as final once they have been signed by a judge and agreed upon by both parties.

It is possible to make changes to a consent order, with the mutual consent of both parties. The order will need to be re-drafted and re-submitted to the court for approval. The agreement of both parties must be established before an order can be changed.

The filing fee for a consent order is $165. Note that if you seek legal advice in respect to the consent orders, this will be an additional cost.

Due to the high cost of going to court, it is recommended that both parties try to resolve disputes outside of court. At AJB Stevens, we understand that it is not always possible to resolve disagreements amicably. If you and your ex-spouse are having difficulties concerning property disputes, child custody, or financial disputes, our professional team of lawyers are here to help guide you through creating and submitting a consent order.

Whether you’re attempting to amend an existing custody order due to an extraordinary circumstance, or are going through this unfortunate process for the first time, we’re here to help.

There are several options for couples that seek to formalise their agreement when a relationship or marriage breaks down. Sometimes, parties can formally agree on how parenting time is to be divided, how a property sale is to be executed and the requisite funds distributed, or, how other assets are to be distributed between the couple. These informal agreements can create headaches for both parties, because they are not legally binding.

A consent order could be requested for:

● A disagreement about the amount of financial support one party should be paying to the other. For example, if you completed renovations on the family home yourself, and your partner is attempting to claim over and above the reasonable amount from the sale of the former family home, you may be entitled to a consent order concerning payment of those monies.

● A disagreement about the dividing up of monies earned from the sale of the family home.

● A disagreement about sales of particularly high-value assets and how that money should be distributed.

● A disagreement about the division of parenting time between parents, when one party has applied for primary custody of the child. Or, when one party isn’t fulfilling parenting time obligations under a separation agreement.

When there is a significant disagreement, consent orders are necessary to bind a party to act in a particular way, pay an amount of money, or assume a particular amount of custody for a child. Consent orders can be made by petitioning a family court to create an enforceable consent order.

An alternative to a consent order is to enter into a ‘binding financial agreement’, which is an agreement that meets strict legal conditions under the Family Law Act of 1975.

For consent orders, it is generally good practice to submit an Application for Consent Order to the Family Court of Australia within 12 months of a divorce, or two years since the end of a de-facto relationship. Filing beyond this timeline could jeopardise the chances of your application being accepted.

Suppose you’ve been struggling to agree with a separated partner or divorced spouse about money, parenting, assets, or another matter. In that case, it may be time to consider petitioning for a court-ordered remedy to the dispute. It is worth noting that making changes to Consent Orders once a judge has ratified them is extremely difficult, barring an extreme change of circumstances.

At AJB Stevens, we understand the delicacies of involving the Family Court of Australia and our goal is to ensure our client’s interests are fairly and properly represented in any petition for Consent Orders.

Consent orders can be an important part of any formal separation or divorce proceeding. Although involving a Family Court is generally considered to be a less-than-desirable outcome for any separation or divorce, sometimes it is necessary to ensure that each party is treated fairly.

Here are a few benefits of applying for enforceable Consent Orders:

● They eliminate any misinterpretation of the needs and desires of either party involved in the dispute, as each party must agree on the content of the order before it is ratified by a judge.

● Consent orders present an opportunity for both parties to get clarity on their financial obligations following the termination of a relationship, particularly if complicated assets like property or shared bank accounts are concerned.

● Consent orders provide written documentation to present to a bank during the division of property from joint ownership to sole ownership, reducing the risk of confusion and the possible financial penalties that could arise as a result.

● They provide an indemnification from liabilities incurred during the relationship. For example, payment of insurance premiums following the transfer of ownership of a shared family vehicle.

● Consent orders provide you with an opportunity to articulate exactly what you want from the other party concerning finances, parenting arrangements and so on. And, as they are put together in direct consultation with legal advice, the emotion is taken out of the situation, allowing for a much less confrontational path forward.

● A final benefit of consent orders is that they allow you to get what you want from an ex-partner or spouse who may not be as forthcoming with their obligations concerning mortgage payments on a shared dwelling, or other financial obligations. If they aren’t meeting their obligations, then a consent order is one way to ensure that, at the very least, they’re bound by law to meet the bare minimum requirements.

At AJB Stevens, we understand that it can sometimes be tricky to advocate for yourself and/or your children following the dissolution of a long-term relationship or marriage. We know that nobody wants to take anyone to court. However, understanding the benefits that a consent order may have for you and your family is an important part of mitigating the difficult fallout of a divorce or legal separation.

Some, or all of the above benefits may apply to your case. If you’re having difficulty dealing with an unreasonable ex-partner or spouse, know that our team has your back and that consent orders may be exactly what you need to get what you want, or are owed by your former partner.

Knowing what a consent order includes, or doesn’t include, is an important step in understanding if a consent order is the proper tool for you to settle a dispute with an ex-partner or spouse.
What Can Be Included in a Consent Order?

● Parenting arrangements could be included in a consent order. For example, if one parent isn’t fulfilling the previously agreed upon custodial arrangements, at a detriment to the other parent’s ability to make a living, alternative custodial arrangements (such as single-parent custody) may be ordered by a consent order.

● The sharing of a property, or the responsibility for specific maintenance that must be performed on the property before it can be sold. Property includes all assets, from real estate to vehicles, furniture and more.

● Disagreements concerning superannuation payments, changes in payments of superannuation from splitting payments evenly into a shared retirement account, to opening a new super account and redistributing funds from the shared account.

● The day-to-day care and custody arrangements of a child, including the contact arrangements that the secondary custodial parent may have with the child, or contact with the child by the immediate family of either party. Disagreements about this resolved with consent orders.

What’s Not Included in Consent Orders?

While consent orders cover many aspects of family law disputes, there are limitations to what they can include:

• Matters unrelated to financial support, property division, or parenting arrangements, such as issues concerning the personal behaviour or conduct of either party.
• Specific non-financial child-related matters like educational decisions or religious upbringing might not be detailed unless they directly impact the welfare of the child and both parties agree to their inclusion.
• Terms that fall outside the legal jurisdiction of the family courts, such as business partnerships or arrangements governed by other areas of law.
• Consent orders do not govern the future relationships of the parties involved, including any conditions or stipulations regarding new partners, unless it directly impacts the welfare of the children involved.
• Issues that fall under criminal law, including domestic violence allegations.
• Any agreements or contracts that the parties may have with third parties that do not directly pertain to the issues at hand (e.g., business contracts, loans).

Beyond that, the specifics of your consent order should be discussed with a lawyer. At AJB Stevens, we understand that consent orders can be complicated to work through. Figuring out what you’re entitled to ask for and what you’re not, is tricky. That’s why we’re here. We help you establish the correct inclusions to make in your consent order as it relates to your specific circumstances.

By applying to the court with an application for consent orders and filling out all annexures. This should be accompanied with a draft version of the consent order.

The documents should be signed, dated and filed. If the Registrar considers that the consent order or orders should not be approved you will be informed of this and the reason for it.

For more information see the Family Court of Australia’s How do I apply for Consent Orders?

The filing fee is $165. Note that if you seek legal advice in respect to the consent orders, this will be an additional cost.

Yes. However, there is a risk that consent orders that you draft yourself will contain errors and be rejected by the court. In order to avoid this possibility, we recommend that you seek legal advice from a specialist family lawyer in the drafting of the orders.

This decision is made by the court. However, you do not usually have to attend a hearing in court. The order is usually assessed ‘on the papers’ by a Registrar.

You must reach an agreement in order to apply for consent orders, as they require the consent of both parties. AJB Stevens can assist you in reaching an agreement.

If you cannot come to an agreement, despite the best efforts of both parties, then you cannot apply for a consent order. Instead, you must make different applications to the court, such as an application to divide property, for maintenance and for the parenting arrangements for children.

Yes, applications can be made at any time after separation, but must be filed within 12 months of a divorce or two years of the end of a de facto relationship.

You cannot apply for a consent order without the consent of both of the partners. In that case, you must file an Application in court asking the court to make orders. There is a separate court process for orders without consent.

The court will check that the documentation meets formal requirements (such as being signed), and determine whether it is ‘just and equitable’ in the circumstances.

The consent order can only be varied or set aside in limited circumstances. This includes where there has been a miscarriage of justice such as fraud or the giving of false evidence, or where new circumstances mean enforcing the order now causes significant hardship.