If you’re navigating the end of a relationship and need to finalise agreements legally, you might be asking, what are consent orders in family law? Simply put, consent orders are legally enforceable agreements approved by the Federal Circuit and Family Court of Australia that outline arrangements for parenting, property, and financial matters after separation.

At O’Sullivan Legal, our family lawyers seek to help our clients resolve their family law matters as quickly and with as much finality as possible. Consent orders are one of the best ways to achieve this, and helping our clients negotiate, draft, and apply for consent orders is one of our chief legal services.

This article unpacks the essentials you need to know about obtaining, enforcing, and understanding the impact of consent orders. With this information in hand, you can start on the pathway to legally solidify your post-separation agreements without the need for stressful and costly court proceedings.

Alternatively, if you’re ready to discuss consent orders with an experienced family lawyer, contact the O’Sullivan team today.

Deciphering Consent Orders: The Basics

Consent orders play a fundamental role in separation scenarios, acting as the legal backbone of agreements between parties. Essentially, a consent order is an agreement stamped and sealed by the court, legally binding the parties for matters such as parenting and property settlement post-separation.

The formalisation of these agreements is a complex process. It requires the court’s seal on the orders through a procedure called the Application for Consent Orders. This seal turns the agreement into an enforceable legal document. However, the process extends beyond merely obtaining the seal. It also involves comprehending its significant legal implications.

Although legal representation may not be compulsory for consent orders, seeking independent legal advice is always recommended. This ensures that parties fully comprehend the seriousness of the agreement and the obligations they are committing to.

The Anatomy of a Consent Order

A consent order is far from a one-size-fits-all document. It’s a tailored agreement designed to meet the specific needs of the parties involved. It can formalise agreements on parenting and/or financial/property arrangements to make them legally binding.

Consent orders generally fall into two primary categories: parenting orders and financial orders. These orders can be sought in the same application, allowing you to resolve these major aspects of your separation in one neat package.

Property settlement in consent orders includes dividing real estate, personal property, financial assets, and debts. The division considers various factors like each party’s assets, liabilities, contributions, and future needs.

Parenting orders within a consent order can determine living arrangements for the child, time spent with the non-residential parent, child maintenance, and other aspects of parental responsibility.

Financial support issues that a consent order might encompass include:

  • Spouse maintenance
  • De facto partner maintenance
  • Division of superannuation and other financial resources, keeping in mind special requirements for superannuation interests.

The Legal Standing of Consent Orders

Consent orders are not merely pieces of paper. They carry the same legal weight as traditional court orders, offering both parties a sense of certainty and protection. Upon review and approval by the Judicial Officer, consent orders carry the same legal effect as if made after a court trial.

For enforcement, both parties must follow these steps:

  1. Both parties must sign the consent orders.
  2. The consent orders must receive approval from the Family Court.
  3. The court will only approve the orders if they are deemed ‘just and equitable’.
  4. If the court rejects the application, it may not provide reasons, underscoring the importance of careful drafting and consideration with the help of a family lawyer.

Once consent orders are approved and become an order of the Court, they must be adhered to. Breaching them can result in enforcement actions by the Court, including potential penalties.

Crafting Your Consent Order: Necessary Documents

The core documents required for applying for consent orders online include the Application for Consent Orders form and the Minute of Consent Orders (which sets out the terms of the agreement). But depending on the circumstances, you may need additional documents. For example, if seeking to vary or discharge an existing order, the original orders must be filed. For superannuation orders, proof of value and relevant agreements are needed. For de facto relationships, a registration certificate is necessary.

Like divorce applications, a court filing fee (now set at $195 per current family law fees) is due upon submitting the application for consent orders. This fee is required for the processing of the application. To be exempt from this filing fee, parties must demonstrate that paying it would cause them legitimate financial hardship.

Learn more about the guidelines for exemption of court fees.

Property Settlement Matters in Consent Orders

In Australia, assets and debts must be divided between parties after separation. This division can be formalised through consent orders (or via financial agreements), providing a legal framework for a just and equitable distribution between parties.

Superannuation interests can be adjusted during the formalisation of financial arrangements. While it is not mandatory, superannuation ‘splitting’ can provide a more equitable division of assets.

Solidifying Parenting Arrangements Through Consent Orders

Besides financial matters, consent orders also establish a framework for addressing parenting matters. Parenting consent orders are evaluated by the court to ensure they are in the children’s best interests (this includes maintaining a meaningful relationship with both of the child’s parents).

Parenting consent orders establish clear parental responsibilities as agreed upon by both parties. This can provide a sense of stability for the child and clarity for the parents, reducing potential conflicts in the future.

A parenting order may encompass various facets of parental responsibility, including parenting matters such as:

  • Day-to-day care
  • Welfare
  • Education
  • Provisions for reviewing the orders as circumstances change

This ensures that the parenting orders remain relevant and beneficial for the child, regardless of changes in the parents’ circumstances.

Learn more about how child custody is dealt with in Australia.

Financial Support and Maintenance in Consent Orders

Consent orders also address financial support and spousal maintenance matters, providing a comprehensive framework for financial arrangements post-separation. Under the Family Law Act 1975, a person is obliged to provide financial support to their spouse or former de facto partner when the latter cannot self-support. This obligation is in place to protect individuals from potential family violence and ensure their well-being.

Assessment of spousal or de facto maintenance by the court involves scrutiny of each party’s:

  • age
  • health
  • income
  • property
  • financial resources
  • working ability
  • the effects of the relationship on earning capacities.

Entering a new marriage terminates entitlements to maintenance, barring court discretion; however, the court will appraise maintenance entitlements when entering a new de facto relationship.

Learn more about how spousal maintenance works.

Consent Orders Without Court Hearings: The Benefits

A key benefit of consent orders is their role as a less stressful, cost-effective alternative to courtroom proceedings. Consent orders save parties significant expenses related to legal fees, court costs, and expert witness fees, making them a cost-effective solution for separating couples to resolve issues.

The process of obtaining consent orders generally bypasses the stress and inconvenience of court hearings. This minimises emotional strain on parties and allows for a more peaceful resolution of matters.

The collaborative approach of consent orders fosters more amicable resolutions, allows for tailored solutions, and typically leads to stronger adherence and fewer breaches in the future.

When Consent Orders Are Challenged: Modifications and Disputes

Although consent orders offer a legal structure for separating matters, certain circumstances may lead to their modification or dispute. Consent orders can be modified or overturned if there has been a miscarriage of justice due to various reasons such as fraud, duress, or suppression of evidence.

A consent order may be varied when it is impracticable to carry it out due to unforeseen circumstances since the order was made. If a person defaults on an obligation imposed by the order and it is considered just and equitable to make a change, the order might be subject to variation.

Exceptional circumstances related to the care, welfare, and development of a child, such as child abuse, that arise after the order, causing hardship, can also be grounds for variation of consent orders.

Independent Legal Advice: Why It’s Essential

Despite the collaborative nature of consent orders, each party still needs to seek independent legal advice (preferably from an experienced family law firm like O’Sullivan Legal). This ensures that the agreement reached is fair and legally sound, providing peace of mind for the other party as well as yourself.

The enforceability of consent orders necessitates a thorough understanding of their legal impact. This includes the effects on children, financial implications, and preventing future conflicts, for which legal advice is crucial.

In matters of property settlement and resolving parenting issues, obtaining legal advice from family lawyers helps to ensure that the terms of the consent orders are comprehensive and that the rights and interests of the parties are protected.

Navigating De Facto Relationships and Consent Orders

Specific legal considerations come into play concerning consent orders in de facto relationships. De facto couples must apply for consent orders within two years of the end of their relationship and meet the jurisdictional requirements, including geographical connections or registration.

If de facto partners wish to apply for consent orders after the two years have elapsed, they must either agree to the Court’s proposed orders or seek the Court’s permission to file the application.

The Financial Implications of Consent Orders: Stamp Duty and Taxes

In addition to settling parenting and property issues, consent orders also have some financial benefits:

  1. Stamp duty exemption: When property is being transferred between you and your former partner as part of a court order, the transaction is exempt from stamp duty. In some jurisdictions, if you have been bought out of your share of the matrimonial home, you can have your stamp duty waived when you purchase your next property.
  2. Capital gains tax exemption: When ownership of an asset is being transferred as part of a court order, a capital gains tax will not be levied against that transaction by default.

It should be noted that the capital gains tax exemption is only guaranteed by consent orders or financial agreements. If an agreement can’t be reached and the property settlement needs to be determined by the court, they will evaluate the suitability of applying capital gains tax.

Learn more about how capital gains tax is handled in relationship breakdowns.

The Process of Filing Consent Orders: Step-by-Step

Obtaining a consent order is a multi-step process. Initially, parties must reach an agreement about parenting and/or financial/property arrangements they wish to be legally binding.

The process includes drafting the Application for Consent Orders and a Minute of Consent Orders, with the orders set out in a separate paragraph for each order, numbered and signed by each party.

After filing, the court typically takes 4 to 6 weeks to consider the application. A registrar reviews to ensure proper standards before making orders. Once consent orders are approved, sealed copies are sent to the parties.

If declined, parties should consult their family lawyer to help them determine why the application may have been rejected. Parties can then draft consent orders that are more likely to be accepted.

After the Consent Order: Enforcement and Compliance

After implementing a consent order, its enforcement and compliance become paramount. Breaching a family court consent order is considered a serious offence, with potential penalties including formal warnings, fines, paying the other side’s legal fees, or even imprisonment in the most severe cases.

To enforce a consent order, the compliant party can take the following steps:

  1. File a Contravention Application for non-compliance.
  2. This may compel a Registrar to sign necessary documents on behalf of the non-compliant spouse.
  3. The court will then review the case and determine a course of corrective action.

The court retains the ability to set aside previously made orders and create new ones to ensure fairness and a just outcome when a party fails to comply with a consent order.

Consent Orders: The Best Way to Settle Parenting and Property Matters for Good

In conclusion, consent orders are the strongest and most cost/time-efficient way to settle parenting and financial matters post-separation.

Consent orders are:

  • Legally binding, so they can’t be easily ignored or changed by either party.
  • Must be ‘just and equitable’ in the eyes of the court, so there’s no chance of being locked into an unfair arrangement (which can occur with financial agreements).
  • Collaborative, which means you and your former partner need to work together and agree on a compromise. This especially leads to better co-parenting relationships and better outcomes for children.
  • A way to avoid the stress and expense of litigating your dispute in court.

At O’Sullivan Legal, our specialist family lawyers routinely help our clients negotiate and draft consent orders, helping them avoid court and settle their matters quickly. Our goal is always to help you reach a fair and amicable agreement that protects your entitlements and, importantly, secures the best interests of your children.

Contact our team to set up an initial consultation so we can discuss your family law matter and review your options, including applying for consent orders.

Frequently Asked Questions

Are consent orders worth it?

Yes, consent orders are worth it, as they are often the best way to document an agreement reached with a spouse or de facto partner about arrangements for children and property.

What is the difference between a parenting plan and a consent order?

The difference between a parenting plan and a consent order is that a parenting plan is a less formal way of agreeing in writing about arrangements for your child/ren, and it doesn’t get filed in a court, while a consent order involves applying for a legal agreement through the court system.

Learn more about parenting plans.

What is the meaning of consent order?

It is called a “consent” order because it is an arrangement that both parties consent and agree to prior to filing with the court. This is in contrast to a regular court order, which is an arrangement mandated by the court without the control of either party.

What is the process to apply for a consent order?

To apply for a consent order, you need to draft the Application for Consent Orders and a Minute of Consent Orders, file them, and await the court’s review and approval.

What happens if a consent order is breached?

If a consent order is breached, serious consequences such as imprisonment, fines, and additional parenting orders may be imposed on the party at fault. It is crucial to adhere to the terms of the consent order to avoid these penalties.