You’ll be faced with a lot of jargon in family law. It’s important to understand the terminology used in a legal setting. This enables you to make your case effectively. In this article, we’re looking at a minute of consent orders. What is it? And how do you create one?
Key takeaways
A minute of consent orders sets out the agreement between parties.
Minute consent orders can cover property and parenting arrangements as well as spousal maintenance.
There are risks when drafting a minute of consent that can invalidate the order.
Barker & Barker shows the importance of fully disclosing all relevant information.
What is a minute of consent orders?
Consent orders have two elements. The first is an application formally requesting that the Family Court make a legally binding agreement between the parties involved. The second is the terms of the proposed orders, which are recorded in the minute of consent.
What can a minute of consent cover as legally binding?
There are three areas that a minute of consent orders can cover:
Property arrangements
Parenting arrangements
Spousal maintenance agreements
Property Arrangements Under Family Law Rules
A minute of property orders deals with financial matters. Draft consent orders must cover the net value of the asset pool. This means that liabilities as well as properties are divided. A minute of consent can make various stipulations, including:
Each party will take possession of certain properties.
Certain assets will be sold.
If properties are being sold, the valuation method the parties agreed to.
How will outstanding debts such as credit cards be covered?
One party agrees to buy out their ex-spouse’s stake in a business.
Joint bank accounts will be closed, and the funds will be divided at an agreed-upon percentage.
The Court must be satisfied that the minute of consent is just and equitable. Consent orders, approved by the Family Court, ensure that the terms outlined reflect each party’s contributions to the property pool and their future needs. Once confirmed, these orders become legally binding, providing certainty and enforceability for both parties.
Parenting Arrangements in the Family Court
The minute of parenting orders, as part of consent orders approved by the Family Court, details a parenting agreement. It sets out the parental responsibility of each party and is governed by what’s in the child’s best interests, ensuring the agreement prioritises the child’s welfare and development. Terms can include:
The child will live with one parent for a certain number of days of the week.
One parent will have visitation access on specific days for a set period of time.
Changeovers after school will take place at a particular location.
The child will participate in certain extra-curricular activities.
The child will attend a particular school.
Family violence is a serious issue considered by the Court. The parties are required to inform the Court if they believe the child is at risk of being exposed to family violence. If an allegation of family violence is made, the Court must be convinced that the proposed orders in the consent address these circumstances appropriately. Consent orders must reflect a safe and equitable outcome for all parties involved. For property settlements, consent orders can avoid the need for court attendance by providing legally binding agreements that meet the requirements of the Family Law Rules 2021, particularly section 10.05, which outlines each party’s responsibilities in such matters.
Spousal maintenance agreements
Family law clients often find themselves in a financially inferior position compared to their former partners. Consent orders for spousal support provide a structured way to ensure financial support for these clients, particularly during challenging transitions. Section 75 of the Family Law Act governs the process of determining the need for spousal support. The Court considers several factors, including the other parent’s financial capacity.
For a property settlement to be effective, it must be articulated properly within the minute of consent to ensure it meets the Court’s requirements. These consent orders play a critical role in achieving fair and equitable outcomes for financially disadvantaged parties.
Is maintenance necessary?
There are many reasons why a party may need financial assistance. These may include:
Primary care responsibilities for children under 18.
Poor health limiting earning capacity.
Limited access to financial resources.
Capacity to pay
Spousal support is only possible if the other party has the financial means to provide support. Consent orders are often used to formalise agreements and ensure they are legally binding. The other party’s financial capacity is assessed after accounting for their reasonable standard of living to determine their ability to provide support.
Financial orders balance the applicant’s needs while ensuring that support payments do not impose undue financial hardship on the other party. The applicant’s lawyer plays a key role in drafting these agreements to meet the required standards and protect their client’s interests.
Relationship factors
A relationship’s length can significantly impact the expectation. Longer relationships often lead to greater maintenance obligations, as the Court considers the contributions made by each spouse over time. Consent orders formalise these arrangements, ensuring that important aspects, such as financial and non-financial contributions, are addressed appropriately.
Contributions like supporting a spouse’s career or taking on primary childcare responsibilities can justify access to financial support. The Court evaluates these factors when issuing court orders or final orders. Consent orders provide additional information and clarity on the terms of maintenance, ensuring they are just, equitable, and enforceable.
Drafting a minute of spousal maintenance order
A minute of spousal support order can be structured in different ways.
Periodic payments are made on a weekly or monthly basis.
A lump sum is paid upfront.
The duration of spousal support can be set by a minute of consent. Duration can be set based on many factors:
The recipient remarries.
The recipient’s financial circumstances change.
A specific event occurs, such as a child reaching a certain age.
Risks when drafting a minute of consent orders
Creating a minute of consent involves risks that can lead to delays and added costs. Clear and well-prepared consent orders help avoid these issues, making the process easier and more efficient.
Lack of consent
A party may feel coerced into accepting unfair arrangements or misled by the provisions of the court orders or consent orders. Seeking legal assistance ensures that all terms are fair, transparent, and in the party’s best interests.
This can be avoided by seeking legal representation. A good family lawyer will guide you through the procedures, ensure the document is properly drafted and signed, and protect your ownership rights while considering your family’s future. They can also negotiate on your behalf to ensure the agreement suits your needs.
Improper drafting
A minute of consent orders needs to document enforceable arrangements in accordance with the agreed terms. Unclear language can risk misinterpreting the ownership of responsibilities, which may lead to the orders being set aside. Terms that place an unreasonable burden on one party are unlikely to be upheld by the Court, and clear drafting can assist with enforcement.
Lack of comprehensiveness
A minute of consent may not cover all relevant issues unless it is signed, submitted, and accompanied by a complete and accurate document. For example, a property settlement may omit crucial assets like superannuation or fail to request a true copy of valuations for a party’s business interests. Similarly, a parenting order may not sufficiently consider one parent’s rights to their child, such as failing to provide adequate visitation or overlooking important events like birthdays.
Challenging a minute of consent orders
There are many reasons to challenge a minute of consent orders. One common point of contention is asset valuation. It is crucial that they agree on how assets are valued and ensure that the valuation form is complete and accurately reflects the assets in question.
If a person is unhappy with how the minute of consent handles that valuation, they may choose to challenge the current application or request that the document be revised and resubmitted. Let’s look at a real-world case study to understand this further.
Barker & Barker (2007)
In Barker & Barker, a farm that the husband was retaining formed part of the property pool. The parties agreed to a valuation of $1,650,000. Based on this valuation, the wife believed she was receiving 53-55% of the asset pool. Weeks before the minute of consent orders were drafted, the husband received a $2,300,000 offer on the farm. The husband rejected the offer as not genuine and didn’t disclose the value of the offer to his wife.
Eight days after the consent orders were granted, the husband accepted an offer on the farm for $2,650,000. The wife subsequently filed a consent order application to have the orders set aside, citing a miscarriage of justice due to evidence suppression. She argued that the suppression involved the concealment of certain requirements for the valuation process and the omission of significant assets, such as expensive jewellery, from the disclosure documents. The Court rejected the application for two reasons:
The offer made before the order didn’t need to be disclosed.
The offer accepted after the order was made couldn’t be challenged. The Court asserted that estate prices change naturally.
The wife appealed the decision through a consent order application, seeking to challenge the ruling. A full Family Court overturned the decision, citing the husband’s failure to meet his disclosure obligations. The Family Court ruled that his original desire to keep the estate increased his obligation to disclose offers made on it. For example, the process requires a person to provide full and frank disclosure, and failing to do so can invalidate the agreement. The Court also noted the importance of filing an additional copy of relevant evidence to support the appeal effectively.
This case study shows that the process of creating and enforcing a minute of property consent orders depends on the accurate disclosure of relevant information. If incorrect or incomplete information is submitted, it can undermine the validity of the consent orders and lead to challenges in court.
Conclusion
A minute of consent orders details the agreement between two parties. It can deal with estate, parenting and spousal support. There are risks that can be avoided with an experienced family lawyer.
Peter provides exceptional service, is understanding and compassionate. He made sure everything was explained, was open and honest and always had my best interests at the forefront.
- Sheree Anderson
If you need help drafting a minute of consent orders, contact us for a free consultation.
