If both parties have reached agreement about child parenting and/or financial property arrangements and want to formalise the agreement to make it binding, they can apply to the Federal Circuit and Family Court of Australia for consent orders. Consent orders do not need to be served.
Essentially, consent orders:
- Are a written agreement between parties in relation to parenting and/or financial matters that is approved by a court.
- Once made, consent orders are legally enforceable and have the same effect as if they had been made by a judge.
- Are sometimes also referred to as minutes of order or terms of settlement.
There are many potential pitfalls when drafting consent orders. Parties are advised to have a lawyer draft the proposed orders and then have a second lawyer review these and give independent legal advice to the other party.
Each lawyer should ensure that the proposed consent orders provide a comprehensive record of the agreement between the separating parties. You should be aware that when the order is to be interpreted or enforced it will be interpreted on its face without looking at any underlying agreement which gave rise to the order. Therefore, if there is any deficiency in the drafting of the order, you may suffer loss.
Please note that it is not possible for one lawyer to act for both parties, even if they are in agreement. This is because the lawyer has to give independent legal advice on the meaning and effect of the draft consent orders and explain the client’s rights, entitlements and obligations.
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