During a separation or a divorce, you’ve probably heard the term “Consent Orders”.
But what does a Consent Order really mean? Why are they important?
If you have children with your ex-spouse or you share assets, then it’s important to become well-informed about this topic. So, to help, here is a quick guide to Consent Orders.
What is a consent order?
A Consent Order refers to the legally enforceable agreement made by a Judge or approved by the Family Court. It is negotiated between two or more parties to settle disputes and involves actions that need to be upheld.
For Family Law, where the case involves separation or divorce, a Consent Order can relate to either parenting of a child or property settlement i.e. the division of assets and allocation of debts.
A Parenting Order is a set of orders made by a Court about parenting arrangements for a child, while Property Orders are a set of orders from a Court regarding the division of assets, debts and payment of money to a spouse or partner.
How to apply for a consent order
A Court can issue you with a Parenting Order or a Property Order either during Court proceedings that have already been commenced where there were issues in dispute (contested matters), or prior to either party having started Court proceedings, where there is an agreement between the parties involved (a Consent Order). .
If you opt to settle your parenting arrangements and property matters through an agreement with your partner or spouse, you can formalise it into writing and make it legally binding by applying to the Family Court of Australia for Consent Orders. You do not need to appear in Court before a Judge when filing an Application for Consent Orders, where Court proceedings have not already been commenced.
If the Court is satisfied that your proposed orders are “just and equitable” for property and financial matters and/or are in the ‘best interests of the children’ for parenting arrangements, the Court will approve them and provide you with a sealed copy of the Orders.
Parenting Orders and Property Orders made by consent have the same weight and enforceability as if they were Orders that had been decided by a Judge after a contested hearing.
What is a minute of consent for?
If you’ve made an Application for Consent Orders, or have reached an agreement after Court proceedings have been commenced, as per the above, you are requesting the Court to make Consent Orders. You file a Minute of Consent Order which is a document setting out the Orders you are asking the Judge to approve that has been signed by both parties.
How much will it cost to file consent orders?
The current Court filing fee for Consent Orders is $165.00 (although this is subject to change – check your local Family Court for the latest fees).
Nevertheless, you may be exempted from paying if you are going through financial hardship or if you are the primary cardholder of a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Care or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to commonwealth health concessions.
How long do consent orders take to process?
If you have submitted your documents correctly and the Family Court is satisfied in making the Consent Orders, you will usually receive the sealed orders within 4 to 6 weeks from the filing date.
If in doubt, contact the Court directly for an update.
Are consent orders legally binding?
Yes. It is important to remember that Consent Orders are legally binding.
While Consent Orders are generally enforceable by the Family Court, there are still limited circumstances when such Property Orders concerning property and financial matters can be overturned due to:
- fraud
- duress
- suppression of evidence
- failure to disclose relevant information
- giving of false evidence
- Proceeds of Crime Order subsequently made
- circumstances have arisen since the Court Order was made where it is impracticable for part of the order to be carried out
- circumstances of an exceptional nature have arisen since the Court Order was made relating to the care, welfare and development of a child of the relationship where a party caring for the child suffer hardship if the Order is not varied
- due to a person’s default under the Orders, it is just and equitable to vary the order
For parenting matters, on the other hand, it’s expected that Parenting Orders made will be in force until the children turn 18 years of age – unless, of course, a new Parenting Order is put in place.
So, if you and the other party agree to change these arrangements, you may enter into a parenting plan or apply for Consent Orders that will modify the existing ones.
Why is it necessary to get consent orders over a parenting plan?
A parenting plan is a written agreement signed by the parties that emphasises the parenting arrangements you have with your former partner.
This is not legally enforceable by the Court, which is why it does not bear the same consequences and legal rights as a Parenting Order. However, the Court will have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the children.
If you wish to make your parenting agreements binding and enforceable, you should formalise them into Consent Orders.
What happens if consent orders are breached?
Provided that it has not been altered by a subsequent parenting plan, the Court can penalise you or your former partner or spouse if there is a failure to comply with a Parenting Order or enforce the terms of a Property Order that hasn’t been complied with.
If your former partner or spouse has not complied with a Property Order, you may need to commence enforcement proceedings so that the terms of the Order are carried out.
If a Parenting Order is breached, you may wish to file a contravention application (in other words, notifying the Court of a breach).
The Court will, then, consider all the facts to determine if:
- the contravention was established or not
- the contravention was established but there was a reasonable excuse
- if there was a less serious contravention without reasonable excuse
- if there was a more serious contravention without reasonable excuse
If the Court determines a party has failed to comply with a Parenting Order without a reasonable excuse, depending on the circumstances and the type and seriousness of the contravention, the Family Law Courts have the power to:
- vary the Parenting Order
- order a post-separation parenting program be attended
- compensate for lost time with the children as a result of the contravention
- require a bond be entered into
- order the other party’s legal costs to be paid (either partially or in full)
- order compensation for reasonable expenses lost as a result of the contravention
- require community service to be participated in
- order a fine to be paid
- order a sentence of imprisonment
- adjourn the case to allow the other party to apply for a further Parenting Order
You may not actually want the other party punished for breaching the Parenting Orders. Instead you may simply want to ensure the resumption of the existing Parenting Orders, or alternately you want to vary the Orders given they have not been complied with and there may be circumstances that have changed such that they are no longer workable or best for the children.
In these circumstances, you may be able to file and Application in a Case rather than a Contravention Application. You should seek legal advice as to your individual situation so that the Application you file is the most likely to achieve the outcome you are seeking.
It is important to obtain independent legal advice to ensure you are aware of your rights and responsibilities when it comes to Court Orders.
Attaining professional help can also allow you to understand the meaning, effect and consequences of the Court Orders you are seeking. Our referral lawyers can advise you if your agreement is just and equitable and/or in the children’s best interests and likely to be approved by the Family Law Courts.
