Dealing with family law disputes can be challenging, and application for consent orders can be a helpful solution. But what is a consent order?
This guide will give you the basics to move forward and address your legal matters effectively and confidently.
Key takeaways
A consent order is a binding agreement that may cover parenting and financial matters.
Consent orders are governed by the Family Law Act and administered by the Family Court.
Application for consent orders have several benefits such as a lower time and cost investment.
There is a set process about application for consent orders.
The Court assesses consent orders applications based on legally defined criteria.
What is a Consent Order?
A consent order is a legally enforceable agreement that the Court approves to formalise matters related to property settlements, parenting arrangements, or spousal maintenance following separation or divorce. You can apply for a consent order if you’re married or in a de facto relationship.
Consent orders have many benefits. One of the most significant is that parties avoid court process. Why is this important? Litigation involves lengthy court hearings and can be costly. Without litigation, parties reduce costs and receive an order sooner. They also maintain greater control over the orders . If they can’t agree, the officer at the court must decide on arrangements for them. Applying for consent orders allows people to organise matters themselves rather than leaving decisions solely in the hands of the Court.
A clear understanding of a consent order can help reduce the stress and uncertainties associated with such proceedings. Seeking legal advice from an experienced family lawyer can ensure the process runs smoothly.
The Legal Framework for Consent Orders
Here is the legislative foundation of consent orders and their role in family law dispute resolution:
1. Family Law Act 1975
Consent orders are governed by the Family Law Act 1975. This law grants the Court the authority to make legally orders with the parties’ agreement regarding financial agreement, spouse maintenance orders, de facto relationship, partner maintenance.
2. Court approval
The terms of a consent order are agreed upon by the parties. However, the order must be submitted to and approved by the Court to become legally enforceable. The judicial officer ensures that the orders are fair and in the individuals concerned. In some cases, parties may need the court’s permission to proceed.
3. Legally binding
Once the Court approves, application for consent orders have the same legal effect as court-imposed orders. Both parties must adhere to the terms or face legal consequences. Orders sought must be reasonable, particularly when addressing property orders, or child arrangements.
The Benefits of Consent Orders
Exploring the advantages of pursuing financial consent orders as opposed to engaging in potentially protracted court process:
1. Cost savings
Consent orders can save parties substantial legal costs. Since parties don’t need to appear in court hearings, they avoid expenses associated with litigation.
2. Time efficiency
As the parties agree upon the terms of the consent orders, they can significantly reduce the time spent resolving their disputes. Applying for consent orders is often a quicker resolution than waiting for a court.
3. Control over outcomes
Consenting parties can shape the terms of the agreement to suit their specific needs and circumstances. They maintain greater control over the orders sought instead of relying on an imposed Court decision.
4. Reduced conflict
Consent orders encourage cooperation and communication between parties. They promote a more amicable resolution and minimise conflict, particularly in cases involving family violence or disputes over child’s parents’ responsibilities.
5. Financial Support Arrangements
Consent orders can provide financial support by outlining clear responsibilities for spouse maintenance orders, de facto partner maintenance. This ensures that both parties and children receive fair financial provisions.
The Process of Obtaining a Consent Orders
An overview of the steps involved in drafting, negotiating, and lodging the consent orders with the court:
Step 1: Negotiation and agreement
The parties must first negotiate and agree upon the terms of their consent orders. They’re often assisted by their respective legal representatives. They sometimes use alternative dispute resolution methods such as mediation.
Step 2: Drafting the consent order
Once the terms have been agreed upon, you must draft consent orders clearly. Qualified legal practitioners can help immensely.
Step 3: Lodging the consent order
The next step is filing consent orders for Court approval. Parties should include any relevant supporting documents or evidence. There’s a $200 filing fee.
Step 4: Court approval
Once lodged, the court will review the consent orders. If satisfied, the court will approve and legally bind the consent orders.
Satisfying the Court
An application for consent orders must satisfy the Court’s criteria. What the Court considers depends on whether you’re seeking parenting consent orders.
Parenting orders
Parenting consent orders deal with the parental responsibilities of each party. There are two broad aspects to this responsibility.
Decision-Making
Parents must make long-term decisions about their children’s lives. These decisions cover major issues such as the child’s education, religious or cultural instruction, and healthcare. Parenting orders can outline these responsibilities, ensuring clarity and stability for the child. Additionally, parenting consent orders provide a legally binding agreement between parents without the need for court intervention. When parenting orders intersect with property settlement, it is crucial to ensure financial arrangements align with the child’s best interests, securing their future well-being.
There are different ways to organise decision-making:
Both parents take joint responsibility for each major decision. This is the method preferred by the Family Court.
One parent has sole responsibility for all decisions. This arrangement isn’t common. However, there are situations where this may be necessary. For example, when one parent doesn’t express a desire to be involved.
Each parent take sole responsibility for different decisions. For example, one parent may take responsibility for ensuring their child remains connected with their culture.
Caring duties
The orders establish who the child will live with and when. This includes visitation arrangements and how changeovers will work. This can take many different forms. Here are some common forms of co-parenting:
Both parents have equal time with the child. Parenting and financial orders arrangements rarely involve equal time. It can work if the co-parents live close by and have a positive relationship.
One parent has primary care of the child and the other parent has visitation rights. This is more typical.
One parent has sole care of the child. The other parent has no visitation rights. This is the least common arrangement. It may be appropriate if one parent rejects their parental responsibilities.
The child's best interests
The child’s best interests are the Court’s primary focus. How does the Court determine what’s in a child’s best interests? As of May 2024, the Court considers six key criteria:
The safety of the child and the child’s carer.
The child’s views.
The child’s developmental, psychological, emotional, and cultural needs.
The capacity of the child’s carer to provide for the above needs.
The benefit the child gains from having a meaningful relationship with both parents and any other significant person.
Any other factor the Court finds is relevant. For example, the Court may make additional provisions for Aboriginal or Torres Strait Islander children to accommodate their cultural needs.
In cases involving parenting consent orders, the Court ensures that all decisions prioritise the child’s welfare, including their emotional and financial security. This may include parenting arrangement and financial orders to provide necessary resources for the child’s upbringing.
Property orders
Property consent orders cover all assets and liabilities within the marriage. They may also include financial support in the form of spousal maintenance orders or de facto partner maintenance. However, child maintenance and child support must be arranged through a separate process.
Financial orders follow a four-step process.
Step one
Both parties must fully disclose their finances to the Court. The Court will then ascertain the marital pool’s net value and determine if a financial agreement is necessary. A law firm can provide guidance during this process.
Step two
The Court will consider the contributions of each party. Contributions may be financial or non-financial, including the day-to-day care of children, homemaking responsibilities, and income contributions. Consent orders may also outline financial responsibilities regarding children support and parenting financial orders.
Step three
The Court will then assess each party’s future needs. This compensates for factors such as decreased earning capacity or lack of financial resources. The Court may also consider de facto partner maintenance if applicable. Financial orders ensure that each party receives a fair distribution of assets while also securing the financial stability of the child.
Step four
The Court determines if the proposed orders are fair and equitable. It may grant the orders or make further adjustments to ensure fairness. In cases where parenting consent orders are involved, the Court ensures that parenting financial orders and support obligations are met to safeguard the child’s well-being.
Seeking advice from an experienced family legal firm can help ensure that financial orders, parenting consent orders, and child support arrangements are structured effectively to meet the needs of all parties involved.
When Consent Orders May Not Be Appropriate?
Recognising specific circumstances where consent orders may not be the best option for resolving disputes:
1. High levels of conflict
Financial consent orders and property agreements rely on mutual agreement and cooperation. In highly acrimonious disputes, where communication between the parents has broken down, reaching an agreement may be challenging or impossible. This is especially critical when children attend parenting discussions, and their welfare is at stake. If conflict levels are too high, litigation may be necessary.
2. Domestic violence or abuse
In situations where there has been family violence, court proceedings may be necessary instead of consent orders to ensure the safety and protection of the victim. The Court will assess whether a court order is required to safeguard the affected party and any children involved. A family lawyer can provide independent legal advice to determine the best legal route for protection and support.
3. History of non-compliance
If the other party has a history of non-compliance with previous orders or agreements, court proceedings may be more appropriate to enforce compliance rather than relying on consent orders. The Court may impose stricter court orders to ensure obligations are met. Additionally, non-compliance can impact other aspects of legal agreements, such as financial consent orders or parenting consent orders.
For tailored legal guidance on financial consent orders, de facto relationships, spouse maintenance orders, and situations involving family violence, consulting a family lawyer is crucial. They can also help you understand court filing fees and other legal costs associated with applying for consent orders.
Conclusion
Consent orders can be a powerful tool for resolving legal disputes more amicably and efficiently, while empowering the parties to take control of their outcomes.
By understanding the legal framework, recognising the benefits, and following best practices on the consent orders application process, you can effectively navigate the family law dispute resolution process and protect your interests.
Peter was super helpful with all of my legal needs. Super affordable and has a wealth of knowledge to assist with my marriage split. Definitely recommend him to family and friends.
-Kate Gallagher
If you want advice with consent orders, you should seek legal advice. Andrews Family Lawyers can help.
