What Are Consent Orders in Family Law and Do I Need Them

What are consent orders?

When both parties have agreed on parenting and/or financial/property arrangements and want to formalise this agreement to make it legally binding, they can apply for consent orders. Consent orders can also be used to change or discharge existing family law orders. The Court will consider whether the proposed consent orders are in the best interests of the children and whether financial/property orders are fair and reasonable.

Are There Time Limits for Filing Consent Orders for Financial Orders?

You can file an application for consent orders any time after separation but should do so within 12 months of a divorce or two years after the end of a de facto relationship. If you file beyond this period, you will need to seek the Court’s permission to file the application by making a request as the first order sought.

Drafting Your Orders

The orders you seek regarding your children, finances, property, or maintenance for a spouse or de facto partner will depend on your family’s specific circumstances. You should consult with our family lawyers about the appropriate orders to apply for.

Consent orders generally fall into two categories – parenting orders and financial orders. These include:

• Spouse Maintenance – Financial support for a party to a marriage or former party to a marriage.

• De Facto Partner Maintenance – Financial support for a party to a de facto relationship that has ended (provided the requirements of section 90DK are met).

• Property – How your property, superannuation, financial resources, and liabilities should be divided (in the case of a de facto relationship that has ended, provided the requirements of section 90SK are met).

Superannuation

Special requirements apply when seeking orders for property settlement involving a superannuation interest. If you are seeking a splitting order in relation to a superannuation interest in accordance with Section 90XT of the Family Law Act:

• You must have proof of value for the superannuation interest.

• We can determine the value of superannuation interests using the method outlined in the Family Law (Superannuation) Regulations 2001.

• The tax implications of the order need to be taken into account.
• When a base amount is allocated, it must not exceed the value of the interest (refer to Section 90XT(4)).

If you are seeking an order that places an obligation on the Trustee of the superannuation plan, you must demonstrate to the Court that the Trustee has been accorded procedural fairness in relation to the order.

Consent orders are legally enforceable and must be carefully drafted and considered to be accepted by the Court. They are a set of agreed orders between the parties, accompanied by the Court form Application for Consent Orders, lodged at the Federal Circuit & Family Court of Australia. Typically, parties do not need to attend Court, as a Registrar will review the paperwork and make the orders if appropriate. These orders will then have the same force and effect as those made by a Judge after a hearing.

Drafting consent orders must be precise and future-focused, as severe penalties can be imposed for breaching orders. Orders can only be changed by agreement or by the Court if there has been a significant change in circumstances that justifies reconsidering the orders.

Consent orders can also involve other parties such as grandparents, step-parents, and others where relevant.

Consent orders may be more appropriate where there is a higher level of conflict between parents or where greater certainty is required.

After mediation, the parties may create a written informal agreement, often referred to as a “Heads of Agreement”. This agreement will only become a parenting plan if it is signed and dated by the parents, and it can guide the creation of consent orders only if the parties wish to do so.

Parenting plans are informal and flexible documents that outline an agreement between the parties concerning the children’s arrangements. For a document to be recognised as a Parenting Plan under the Family Law Act, it must be written, signed, and dated by both parents. Grandparents, step-parents, and other individuals can also be included in the parenting plan.

Parenting plans are non-binding, meaning they can be renegotiated and amended if circumstances change. They are not restricted by Court rules and can address a wider range of issues, customised to the needs and concerns of the parties involved. Since parenting plans are not enforceable, parties can include statements without worrying about enforcement in case of non-compliance. Parenting plans are best suited for parents who can communicate effectively and make joint decisions regarding their children post-separation.

It is important to get legal advice to determine the most appropriate structure for your situation. If you have recently separated and are unsure of your next steps, please contact us to schedule an initial consultation so we can advise you accordingly. Call us at 1800 473 676.