Family law Consent Orders are made by the court following the breakdown of a relationship. Their main goal is to provide a clean financial break and a once and for all adjustment of property. They can put in place a formal arrangement for the first time or vary or discharge earlier orders. Consent Orders may relate to property, parenting or spousal maintenance matters. They are made with the agreement of both spouses or partners or both of a child’s parents, and may also include third parties such as grandparents.

How are consent orders made?

Consent Orders are usually made administratively after an Application for Consent Orders and a Minute of Order are filed electronically with the Federal Circuit and Family Court of Australia via the court’s portal.

If parenting orders are sought, each party must also complete and file with the court a Notice of child abuse, family violence or risk.

The filing fee must be paid via the portal when filing an application. How the fee is ultimately shared between parties is not the court’s concern. An applicant can also apply for an exemption from fees, either general or on financial hardship grounds.

Parenting matters

You can file an Application for Consent Orders relating to parenting matters at any time before a child turns 18. If an order already exists and the new orders are intended to vary or discharge them, you must also give the court sealed copies of the existing orders.

Financial matters

You can file property or spousal maintenance- consent orders within 12 months of the making of a divorce order. An application for property settlement or maintenance following the breakdown of a de facto relationship can be made within 2 years of the date of separation. Applications can be made after this time limit by agreement and when a corresponding order seeking the application be made ‘out of time’ is sought in the Minute of Order.

How is the application decided?

An Application for Consent Orders, along with the orders sought and any other supporting documents filed with the court, are the only documents the court has before them when considering the application and whether to make the orders.

Applications for Consent Orders are usually considered by Registrars, who are empowered to make final orders by consent.

When considering parenting orders, the Registrar must consider whether, based on the information provided, the orders are in the best interests of the subject child or children. When considering property settlement matters, the Registrar must consider whether the proposed orders are ‘just and equitable in all of the circumstances’.

The Registrar reviews the Application for Consent Orders in detail. Each case is different, so it is important that the documents are accurately completed and provide sufficient information to satisfy the court as to the facts and circumstances of the case. Whilst parties may agree on the final outcome, they need not necessarily agree on how that outcome is arrived at or achieved. The application gives the applicant and the respondent separate spaces to respond to certain questions relating to both parenting and property matters. If the parties’ respective positions support the same outcome, the court is likely to make the orders.

Pre-action procedures require that before commencing court proceedings, each party provide adequate disclosure. The parties must provide each other with financial disclosure and other relevant information to narrow the issues in dispute before formalising an agreed outcome via an Application for Consent Orders.

The Statement of Truth attached to an application requires each party to confirm to the court that “I have no interest in property, superannuation, or a financial resource which is not described” in the application, and that “the matters stated in this application that are within my personal knowledge are true and all other facts are true to the best of my knowledge, information and belief and the order sought are supported by evidence.”

Non-disclosure

If you fail to fully disclose financial circumstances in a property matter, the other party may in future apply to the court to set aside the orders on the grounds of non-disclosure.

Court may seek more information

The family law jurisdiction is highly discretionary and a range of outcomes is achievable in any one case after a final hearing. If a Registrar is not satisfied that proposed orders fall within the likely range of outcomes, they may requisition the application. A requisition seeks further information or an affidavit on various points from one or both parties to satisfy the Registrar as to the circumstances of the case and suitability of the proposed orders. Usually a requisition allows 6 weeks for a response before the Registrar reconsiders the matter.

Orders that are made by consent will have the same force and effect as Judge made orders once they are made on a final basis and ‘sealed’ by the court. It is therefore important to take particular care in the drafting of orders to ensure that they are clear, unambiguous and enforceable.

Where to now?

You should seek family law advice on your matter to ensure the Application for Consent Orders is appropriately completed, and that the orders are appropriately drafted to achieve your desired outcome.

Contact us if you require legal advice or representation with regards to an application for consent orders.