Mid Mountains Legal Blog

What are Family Law Consent Orders?

Anthony Steel

If you and your former spouse/partner have reached agreement about parenting arrangements or how to divide your combined assets and liabilities between you (matrimonial property), this agreement can be formalised by way of family law consent orders. Proposed consent orders setting out the agreement reached are electronically filed in court and, if approved by the Court, become legally binding Court Orders.

What are Consent Orders?

Family law consent orders fall within two broad categories:

1.      Parenting

This includes orders about how a child’s parents are to make decisions for the child, who the child is to live with, when the child is to spend time with each parent, and how a parent is to communicate with the child when the child is in the other parent’s care.

2.      Property

This includes orders about the division of matrimonial property, such as lump sum payments, the sale of property, superannuation splits and spousal maintenance.

You can apply for parenting or property orders on their own, or both parenting and property orders in the same application.

How do I obtain family law consent orders?

Obtaining family law consent orders is a relatively straightforward process. It is an administrative process and a court hearing is not required, so it takes less time and is more cost-effective than other methods of resolving family law disputes.

There are three steps to the process.

1.      Negotiation

This involves discussions with the other party aimed at reaching agreement. This can be directly between the parties, or through their respective lawyers. The negotiation stage can involve tactical considerations and compromises. You may find it helpful to be assisted by a solicitor, who can advise you of your rights and entitlements before you make or agree to an offer.

2.      Drafting

This involves the preparation of the documents to be filed with the court. You must file:

a.       an Application for Consent Orders (an Application)

An Application briefly sets out details of each party and the child/ren, each party’s assets, liabilities and financial resources, and the consequences of the consent orders the parties seek.

b.       the consent orders

This sets out the agreement reached by the parties and outlines how that agreement is to be put into action (i.e. who is to do what and the time frames for doing so). It is very important that the orders are drafted properly and in a way that allows the court to enforce them. If orders are not drafted properly, further problems may later arise. If you are unfamiliar with the proper way to draft court orders, it is extremely important to seek a lawyer’s assistance at this stage.

c.        annexure to proposed consent parenting orders

Each party seeking parenting orders must also complete and file an Annexure to Proposed Consent Parenting Order, which outlines whether there is any risk of family violence, abuse or neglect to the child/ren.

d.        notice to third parties

If you are seeking property orders, it may be necessary to give third parties notice before filing. For example, parties seeking a superannuation split must ask the trustee of the superannuation fund for a letter confirming that they will comply with the Orders being sought, which must be filed with the other documents.

3.      Filing

The proposed consent orders and supporting documents must be electronically filed in the Federal Circuit and Family Court of Australia (FCFCOA).

Benefits of Consent Orders

Benefits of formalising an agreement by way of consent orders include:

  • Once made, Orders are final. It is extremely difficult for one party to vary an Order once made;
  • Once made, Orders are enforceable. The FCFCOA can enforce orders by several means, including signing documents on behalf of a party who refuses to do so. If more substantial action is required, an enforcement application can be made to the FCFCOA.
  • any transfer of property (including the matrimonial home) is exempt from payment of stamp duty if it is transferred to a party or a child of the relationship.

Restrictions on filing family law consent orders

No time limits apply to an Application seeking parenting orders. Such an application can be filed at any time after the parties have separated.

The above time limits do apply to the filing of an Application seeking property orders. For married couples, the granting of a divorce triggers this time limit. An Application seeking property orders must be filed within 12 months after a divorce is granted. For de-facto couples, the breakdown of the relationship triggers the time limit. De-facto partners have two years after separation to file an Application seeking property orders.

If you do not file within these time periods, you will have to seek the leave (i.e. permission) of the Court which may not be granted.

Filing Fee

A filing fee must be paid when filing your Application. The current fee is $180.00.

You may be eligible for an exemption from this fee, if you can supply the court with documentary evidence to support your reasoning. See Guidelines for Exemption of Court Fees on the FCFCOA website.

Seeking legal advice

If you wish to resolve your family law dispute by filing consent orders, it is important to obtain independent legal advice. A lawyer can explain your legal rights and entitlements under the Family Law Act 1975 (Cth) and how the law applies to your case.

Contact us for assistance bringing an Application or with any other legal matter.

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