Consent Orders

A consent order is an order which the court can make, with the consent of both partners, about their property, financial affairs or about the continued parenting of their children.

There are several options for couples that seek to agree on matters following the breakdown of the marriage or relationship. Parties can informally agree on how property is to be divided, or ongoing support payments. Or, they can agree on a ‘Parenting Plan’, setting out how ongoing parenting (sometimes called ‘child custody’) and care of the children is to work. However, neither of these options is legally enforceable.

By making an application to the court for a consent order, the result is a set of arrangements that both former partners can rely on, going forward.

An alternative is to enter into a ‘binding financial agreement’, which is an agreement which meets strict legal conditions under the Family Law Act 1975.

A consent order is enforceable in court. In addition, a consent order is final, giving certainty to both parties. Only in very limited circumstances can it be subsequently varied.

A parenting consent order deals with parental responsibility (formerly referred to as ‘child custody’), where the children will live, who the children may communicate with, and how the children will spend time with each parent. The court will consider a range of matters when making such an order including:

• Whether children should spend equal time, or substantial and significant time, with each of their parents;
• Any matters laid out in a previously agreed to parenting plan;
• What happens on the death of a parent;
• Whether a post-separation parenting program is desirable;
• Relevant cultural matters (such as kinship obligations) that apply to
• Indigenous Australians.

The court’s paramount interest will be in the welfare of the children.

A financial or property consent order might include how property is to be divided, access to superannuation or redundancy payments and any provision for ongoing maintenance payments

By applying to the court with an application for consent orders and filling out all annexures. This should be accompanied with a draft version of the consent order.

The documents should be signed, dated and filed. If the Registrar considers that the consent order or orders should not be approved you will be informed of this and the reason for it.

For more information see the Family Court of Australia’s How do I apply for Consent Orders?

The filing fee is $165. Note that if you seek legal advice in respect to the consent orders, this will be an additional cost.

Yes. However, there is a risk that consent orders that you draft yourself will contain errors and be rejected by the court. In order to avoid this possibility, we recommend that you seek legal advice from a specialist family lawyer in the drafting of the orders.

This decision is made by the court. However, you do not usually have to attend a hearing in court. The order is usually assessed ‘on the papers’ by a Registrar.

You must reach an agreement in order to apply for consent orders, as they require the consent of both parties. AJB Stevens can assist you in reaching an agreement.

If you cannot come to an agreement, despite the best efforts of both parties, then you cannot apply for a consent order. Instead, you must make different applications to the court, such as an application to divide property, for maintenance and for the parenting arrangements for children.

It is recommended. As a consent order is difficult to set aside, it substantially affects the legal interests of both parties. Therefore, it is recommended that each party receive independent advice from a specialist family lawyer.

Yes, applications can be made at any time after separation, but must be filed within 12 months of a divorce or two years of the end of a de facto relationship.

You cannot apply for a consent order without the consent of both of the partners. In that case, you must file an Application in court asking the court to make orders. There is a separate court process for orders without consent.

The court will check that the documentation meets formal requirements (such as being signed), and determine whether it is ‘just and equitable’ in the circumstances.

The consent order can only be varied or set aside in limited circumstances. This includes where there has been a miscarriage of justice such as fraud or the giving of false evidence, or where new circumstances mean enforcing the order now causes significant hardship.