What are Consent Orders?
Simply put, Consent Orders are Orders made by consent of the parties.
Broadly speaking, there are two avenues which can be taken to obtain a Consent Order in the Federal Circuit and Family Court of Australia:
Where the parties agree to the financial terms of settlement and/or parenting arrangements in relation to the children of the relationship prior to initiating court proceedings, or
Where parties have been unable to agree to terms of settlement and/or parenting arrangements during the family dispute resolution process, resulting in one party initiating family law proceedings in the Court, however at some point during the proceedinga and prior to Final Hearing (or “Trial”) the parties come to an agreement and provide the Court with a proposed Consent Order.
Application for Consent Orders
Often clients ask how they can finalise an agreement without going to court now that they are separated from their former partner. While obtaining Consent Orders requires a ‘hearing’ before a Judge of Registrar of the Federal Circuit and Family Court of Australia, in circumstances where parties have come to an agreement outside of court proceedings, and have submitted an Application for Consent Orders, orders can usually be made in the absence of the parties.
Obtaining Consent Orders is a fairly simple process, in which parties electronically file an Application for Consent Orders and Minutes of Consent (Orders sought).
The Application form can be found here. The drafting of Minutes of Consent, can be quite complex, especially with regard to property settlement matters that will include a superannuation split. For this reason, it is important to consult experienced lawyers when drafting Minutes of Consent.
Consent Orders and Parenting Matters
Parties seeking to make formal and legally-binding arrangements with regard to the care, welfare and development of the children to the relationship will need to apply to the Court for Consent Orders (parenting orders) to be made.
Family Dispute Resolution (Mediation)
Generally, the first step to obtaining Consent Orders is the attendance of both parties at a Family Dispute Resolution Conference (or “mediation”). This is the case, irrespective of whether Consent Orders are made by way of an Application for Consent Orders or in circumstances where mediation was unsuccessful and one party has initiated court proceedings (Initiating Application) and the parties have later come to an agreement and have put forward to the Court signed Minutes of Consent requesting the Registrar or Judge to make them into Consent Orders.
This is because the Family Law Rules….
Attending Mediation
It is always important to seek legal advice prior to attending mediation (and where possible attend a legally-assisted mediation) to ensure you understand what type of terms or orders should be included in a parenting plan or consent orders so to ensure the best interests of the children are at the forefront of negotiation.
What is a parenting plan?
In circumstances where parties attend mediation and agree to terms relating to the parenting of the children, the mediator will draft a “parenting plan” for both parties to sign.
What is the difference between a Parenting Plan and Parenting Order?
While a parenting plan provides a blueprint for the care arrangements of the children for which both parties have consented to, they are not a legally binding document. Therefore, in the event that your former partner decides not to uphold the terms of the parenting plan, you will be restricted in terms of seeking assistance to enforce those arrangements. For example, where a former spouse fails to return the child at the agreed upon time, the police will be unable to assist you in having the child returned to your care where you only have a parenting plan. It is for this reason, that an experienced family lawyer will always recommend that you apply to the Federal Circuit and Family Court of Australia for your parenting plan to be made into Consent Orders.
Consent Orders and Financial Settlement
Pursuant to Section 79(2) and Section 90SM of the Family Law Act, the Court requires that the alteration of property interests following the breakdown of a relationship is just and equitable. This is considered an “overriding requirement” when considering a financial agreement, which involves the Court giving consideration to the proposed Orders as a whole, rather than just looking at the percentage split. Generally speaking, to arrive at a just and equitable division of property, requires a 4-step process.
4-Step financial consent order process
determine the assets, liabilities and financial resources available;
determine the contributions, including non financial contributions, of each party,
determine the “future needs” of each party in accordance with Section 75(2) and Section 79(4) of the Family Law Act, and
consider what alteration of property interests is just and equitable, having regard to the foregoing.
For case law on the “four-step process” in property consent orders, see Russell & Russell [1999] FamCA 1875, Mallet and Mallet (1984) 156 CLR 605, and Bevan & Bevan [2013] FamCAFC 116.
What is the difference between Consent Orders vs Binding Financial Agreements?
Consent Orders and Binding Financial Agreements are both legally-binding documents, however they have different processes and requirements.
A Consent Order is a Court Order and requires an Application to the Court, whereas a Binding Financial Agreement is a legal document (a contract) drafted by solicitors in accordance with the parties instructions in terms of the agreed financial arrangements following separation (note, a Binding Financial Agreement can also be drafted prior to a relationship breaking down). As such, a Binding Financial Agreement does not require a Court attendance, or the approval of the Court.
Marriages
For Marriages, the requirements for a Binding Financial Agreement are found under Part VIIIA of the Family Law Act. The relevant sections are:
Section 90B for before marriages,
Section 90C for during marriages, and
Section 90D for following a divorce order.
De Facto Relationships
For de facto relationships, the relevant sections of the Act are found under Division 4 of Part VIIIAB of the Family Law Act, and are as follows:
Section 90UB for before the commencement of a de facto relationship,
Section 90UC for during the de facto relationship, and
Section 90UD for following the breakdown of the de facto relationship.
Sections 90d AND 90UD being the most relevant in terms of making comparison between Consent Orders and Binding Financial Agreements, due to Consent Orders only being made in the Federal Circuit and Family Court of Australia following the breakdown of a relationship.
However irrespective of when a Binding Financial Agreement is prepared, the legislation requires that both parties obtain independent legal advice. This means that parties will need to retain their own solicitor. Due to the complexity of Binding Financial Agreements, Solicitors fees for the preparation of a Financial Agreement will usually far exceed that of assisting with the preparation of a Consent Order.
How do I contest a Consent Order?
Grounds for contesting a Consent Order include the following:
Impractiability,
Hardship with regard to a child’s care, welfare and development, and
Fraud.
