As discussed in our article “Family Law: Ways to Formalise an Agreement”, there are many different ways parties in a Family Law dispute are able to finalise their agreement. One option is Consent Orders.
What is a Consent Order?
In the context of a Family Law dispute, Consent Orders are a written agreement between parties, which are filed in Court and become a Court Order.
Consent Orders are able to deal with a number of issues including:
- Parenting– For example, how are decisions made for the child, when does a child spend time with each parent, travel arrangements and method of communication (between the parent and child, or even between the parents); and
- Property– For example, the method of a transfer or sale of matrimonial property, a superannuation split, cash payments (i.e. lump sum or periodic) and spousal maintenance.
Consent Orders are generally not able to deal with Child Support matters.
When can we enter into a Consent Order?
Consent Orders can be entered at any time during a Family Law dispute, whether or not an application has been made to a Court.
During a Court matter, Consent Orders can be made for Interim Orders (that is, orders that take effect whilst Court proceedings are still ongoing) or Final Orders ( which ends the dispute and cancels all future Court dates). Consent Orders can also be made where no one has applied to Court yet. Orders can also be made for Parenting or Property matters, or both.
Some examples of where Consent Orders can be useful include:
- When parties have separated and have agreed to finalise an agreement for Parenting and Property matters without commencing Court proceedings (either on their own or following a mediation);
- When the parties agree on the process to be followed on an interim basis until the matter can be resolved by the Court where proceedings have been commenced; and
- When parties have been attending Court and have negotiated Consent Orders outside the Court room, on the same day as a Court Appearance, and hand up those freshly negotiated Consent Orders to the Judge.
Why should we enter into a Consent Order?
Consent Orders, unlike some other options for resolving a Family Law dispute early, are enforceable by the Court.
In the event a party to the Consent Orders fails to carry out an obligation under the Consent Orders, the aggrieved party can make an application to the Court, for the Court to enforce the terms of the Consent Order, or in some circumstances to have someone punished for not following the Order (called a contravention).
In Property matters, another added benefit of using Consent Orders is that there are usually exemptions to paying Transfer Duty where Consent Orders have been entered into.
What is the process for getting Consent Orders?
The process for getting a Consent Order is generally less complex and cheaper than some other methods of resolving a Family Law dispute. While each Family Law matter depends on its own facts, we have summarised the steps for getting Consent Orders below:
- Negotiation – This involves discussions with the other party (or their solicitor) to reach an agreement. This process usually involves tactical considerations and compromises, and always requires a comprehensive understanding of the “big picture” items and the law.
- Drafting– This involves preparing Consent Orders that not just reflect the agreement of the parties, but also are also comprehensive and “practically” If Orders are not drafted correctly, further problems may arise in the future for the parties and the child(ren). Depending on whether Court proceedings have started or not, and whether the matter involves parenting matters, property matters or both, additional documents will usually need to be prepared. The extra documents may include an Application for Consent Orders, Annexure to draft Consent Parenting Orders, or written submissions about why the Court ought to make the Orders.
- Filing – This involves lodging the Consent Orders and the supporting documents in Court. Sometimes, prior to filing, it is necessary to provide notice to third parties such as Superannuation funds. In certain circumstances the Court may require a party to provide further information and evidence before making an Order.
Once a Consent Order has been filed, the Court will review the proposed Orders to check that they consider it to be “fair and equitable”. If they are and there are no other issues, the Court will make the Orders as requested.
When can a consent order be set aside/changed?
Section 79A of the Family Law Act 1975 (Cth) gives the Court the power to set aside property orders where: (1) there has been a miscarriage of justice, (2) the orders are impractical, (3) a party has defaulted in such a way that a new order is necessary, or (4) exceptional circumstances have arisen (including proceeds of crime orders). In practice, however, once a Consent Order is made, it is very difficult to have the order set aside or revoked.
For example, in Lane & Lane  FamCAFC 53, the Court rejected an appeal for property Consent Orders to be set aside, even where there was a miscarriage of justice when the Orders were made. In this case, the husband withheld evidence about the value of one of his assets, which was worth about $980,000, claiming that the total amount of assets and liabilities owned by the parties was only about $135,000. Despite this deception, the Court found that because the existing Consent Orders were still “fair and equitable”, they should not be set aside.
At ant time after parenting orders are made, parents may choose to enter into a new parenting plan to make new arrangements for their children. As this plan does not get reviewed/approved by the Courts, the only requirement is that the parents are able to agree on the arrangements.
If parents agree that they want to change the orders and they want a new order, or if the parents do not agree and one or both wants to change the existing orders, they will need to make a new application to the Court. The Court will only change the existing orders where there has been a “significant change in circumstances”. This is sometimes called the Rice and Asplund test.
Should we enter into a Consent Order?
Speak with us first.
Consent Orders are not the best option for every circumstance – so you should talk your personal situation over with a lawyer to ensure Consent Orders really are the best option for you and your family. There could be serious long-term effects that flow on from Consent Orders, so it is important to get them right.
If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.