What Are Consent Orders In The Family Court?

What Are Consent Orders In The Family Court?

What Are Consent Orders In The Family Court

It is a sad fact of life, but marriages and marital-style relationships break down every day. As a result of such breakdowns, the parties often find themselves in the family law court seeking consent orders, whether parenting, property, or both. If you apply for consent orders, you and your ex-partner have managed to agree on your own. You can only apply for consent orders in the family court of Australia. Let’s delve a little deeper into this part of family law.

You’ve Called It Quits – What Now?

As we’ve already mentioned, marriages and de facto relationships end every day. Sometimes people stop maintaining the relationship and go their separate ways. Still, things can become a little more complicated for couples with children or property to consider in the split. There’s a lot to be considered when ending a relationship when there are children or property involved. The Family Law Act 1975 outlines and defines the Court of Australia’s powers in family law matters. In other words, it details what issues are dealt with by the family court. They cover everything from child support and maintenance to domestic violence and matters to do with financial and property agreements within marital relationships. The Family Law Act also defines a de facto relationship, which is essentially a marital style relationship between people who aren’t married to one another. Are you confused yet? Get some professional legal advice from lawyers specialising in family law.

Talking To Family Law Solicitors

It can be difficult to navigate family law if you don’t know much about the Family Law Act. Seek advice from a qualified solicitor with experience and expertise in the field. They know what you can and can’t include in your agreement, providing for children’s needs and your financial concerns. Children’s orders might include:
  • Who children will spend time with, and when.
  • Who has parental responsibility for the children?
  • Authority to travel overseas, and whether the other parent must give permission.
  • Place and time of changeover of care.
  • Parents’ expected behaviour, such as agreeing not to speak badly about the other parent in the children’s presence.
Financial orders deal with issues such as:
  • Who keeps the house.
  • How assets, such as furniture, jewellery, and cars, will be divided.
  • Whether or not either of you will pay or receive part of the other’s superannuation.
  • How to deal with debts.
  • Any cash payouts from one party to the other, for example, one buying out the other’s share of the marital property.

Reaching Middle Ground

Separated couples are not legally required to get consent orders from the family court of Australia. If they can reach an agreement about raising their children together and dividing their assets, it is possible to make an informal agreement. The downside to this decision is that there is no legal protection for either party. A consent order is a legal agreement that, once made, cannot be altered. It offers both parties a level of protection. You can’t move forward with an application for consent orders if you disagree. You must try to reach an agreement. That is what consent orders are, after all – both parties agreeing to terms. If you’re having difficulties reaching an agreement, there are three things you can do.
  • Discuss everything with your former partner until you can find a middle ground on which you can agree. It might take a little time, but it will be worth it in the long term.
  • Be prepared to negotiate. Both parties may need to agree to compromise on certain aspects of the agreement. If difficulties continue, you can engage a mediator or solicitor to assist you.
  • The last resort is going to the family court. It can prove costly, so anything you can do to resolve matters yourself will help. Going the court route takes much of the decision making out of your hands and places it in the judge’s hands.

Are There Time Limits When Applying For Consent Orders?

You can apply for parenting consent orders at any time after separating from your partner. If, however, you want to file an application for consent orders seeking property orders, there are time limits. When a divorce is final, you need to file an application for consent orders within one year. If a de-facto couple separates, they have two years to apply for consent orders seeking property orders. If they don’t apply within the time limits, the parties will need to seek permission from the court, but they must realise that the court doesn’t always give permission. It can take as little as a week to prepare an application for consent orders for submission to the family law courts. There isn’t usually any need for either party to attend court. The courts will take anywhere from one month to three months to process the application for consent orders in chambers. There are limited circumstances that may get you a speedier result. The lengthiest part of organising consent orders is the negotiation between both parties to reach an agreement. You can’t make an application for consent orders without both parties first reaching an agreement.

What Is The Process To Apply For Consent Orders?

The Family Law Court requires certain information to meet their legal obligation to consider whether or not the consent order is a fair and proper arrangement financially. The court obtains these details from the statement of information form. The form includes information such as:
  • Personal details.
  • How long the marriage lasted.
  • An approximate value for the income and assets of both parties.
  • Property to be transferred, such as mortgage debt. (Include a statement from the mortgage lender to state that you notified them and they have no objections to the transfer.)
  • Future intentions regarding future accommodation arrangements for both parties.
  • Details of any remarriages or intentions to remarry or enter a long-term relationship.
  • Any arrangements or pertinent details regarding the children of the partnership.
Once you’ve gathered the required information, it is time to draft the proposed consent order. You can prepare this document yourself, setting out the terms or arrangement you’re seeking. If you and your ex-spouse have trouble communicating and cooperating, it is advisable to enlist the help of a qualified family court lawyer. Send your application for a consent order and all supporting documents to the court along with the fee. Contact your local court to ensure you’ve included everything they need. Keep copies of all documents.

Will The Judge accept our agreement?

It isn’t a foregone conclusion that the judge will accept your application for consent orders. Although you may have reached an agreement with your former partner, the court goes through the application to ensure that it is fair to both of you. If the court determines that it isn’t equitable, it can reject the application. If the court denies your application for consent orders, you will need to go back and reconsider and renegotiate the agreement terms with your ex-partner. The court may deny the application for consent orders because it doesn’t consider the agreement to be fair to one of the parties or isn’t in the children’s best interest. If the court deems the proposed consent order is fair to both parties, it will approve the order. Both parties, and any lawyers involved, will receive an approved consent order from the court. Keep copies.

Setting Aside Or Changing Consent Orders

It is rare, but there are limited circumstances that allow for possible variations of consent orders. They may also qualify for doing away with consent orders. Such circumstances include:
  • Both parties consent to change consent orders.
  • A miscarriage of justice occurs. (Duress, fraud, suppressing evidence, failing to disclose relevant information, or giving false evidence.)
  • The consent orders are no longer practicable due to altered circumstances.
  • One party defaults the order by not fulfilling an obligation of the consent orders. In that case, it is fair and equitable to alter the order.
  • Any exceptional circumstances surrounding the welfare, development, and care of a child of the union, particularly where the party with caring responsibility for the child, will suffer hardship if the consent orders aren’t varied or set aside.
Of course, if you notice any errors when you receive your approved consent orders, move to have them rectified quickly.

Frequently Asked Questions

What are consent orders?

There are generally two categories when talking about consent orders and family law.
  • Parenting orders are typically those dealing with children and their decisions – where they live, who they live with, and how much time they spend with each of their parents; and what communication looks like when the child is with the other parent.
  • Property orders deal with how to divide property after a marital split. This marital property includes such things as superannuation, maintenance, and the marital home.
You can seek these orders independently of each other or in the same application to the family court. Parenting, or children’s, orders are ongoing, while the aim is to finalise financial ties with financial orders.

Can we change orders after the court approves them?

Not really. There are some extenuating circumstances, but for the main part, once the court grants consent orders, they are final. Where children are concerned, you can change orders if you can show Australia’s family court that circumstances have significantly altered since first seeking parenting orders. It is doubtful that you’ll get the family court to alter financial or property orders once they are approved. If you could prove that your ex-partner or some other party coerced you to agree involuntarily to the terms, the court may agree to amend the order, but it isn’t likely. The court approved the consent orders because they were deemed fair and equitable to both parties, so chances are they will stand. When it comes to a parenting consent order, you can add a little flexibility by adding a provision that both parties can agree to change the care arrangements as they see fit. The only hope you have of actually altering the consent order involves your situation dramatically changing, and the other party refuses to consider altering the arrangements with the children as they stand. You’ll need to submit a new application for consent orders.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Consent Orders or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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