What are consent orders used for?
Consent orders are court orders made with the agreement of both parties. If you have separated and are able to reach an agreement about children and parenting or financial and property matters, you should make your agreement binding by obtaining consent orders. You apply to the Federal Circuit and Family Court of Australia (the Court) for consent orders. Once your agreement is sealed by the Court it becomes legally binding. Consent orders have the full legal status of court orders and must be obeyed. Consent orders can deal with a broad range of issues including children, parenting, financial, property, superannuation splitting, spousal maintenance, etc.
The other party is not required to obtain independent legal advice, though they may do so if they wish. There are also other options to consider, such as whether to use a binding financial agreement instead of or to supplement your consent orders, and whether a child support agreement is also needed.
Why do I need consent orders?
In parenting matters, having consent orders gives you certainty that you can spend the time with your children that the orders say you can. For property settlements, consent orders can be used to end the financial relationship between the parties so you can get on with your life. You can also use consent orders to split superannuation. There are some limitations to the use of consent orders, for example, if you wish to limit the possibility of future spousal maintenance claims, you will need to enter into a separate financial agreement to achieve this. Consent orders relating to property are also required to be just and equitable.
At Jano Family Law, we are able to provide you with a fixed fee for consent orders. Please see our Fees page for more details.
Parenting consent orders
- Who has parental responsibility for the children.
- Who the children will spend their time with, and when.
- Schooling arrangements for the children and who pays for what.
- Religious issues relating to the children.
- Whether children can travel overseas and any permission required from the other parent.
- The place and times for changeover of care.
- Expectations that both parents will be of good behaviour and not speak badly about the other parent in front of the children.
- Any other matters relevant to the care and upbringing of the children.
Parenting orders have an ongoing effect, therefore they need to be well considered and carefully drafted to avoid difficulties in the future. Furthermore, the Court has to be satisfied that the arrangements are in the best interests of the children before they make the orders.
If you are seeking parenting orders by consent, a Notice of child abuse, family violence or risk must also be filed by with the application.
Property consent orders
- Who gets to keep the house or investment property.
- What other assets each of you will retain, such as cars, furniture, jewellery, etc.
- Whether you will split your superannuation.
- Whether debts and other liabilities will be be paid out or taken on by one party only.
- Any cash payment from one person to the other. This can occur when one party buys out the other’s share of a house or other property.
Property orders should end financial relations between the parties. It is however recommended to be aware of any potential spousal maintenance claims and also use binding financial agreement to mitigate any such risk.
Property orders can be more complicated than parenting orders as disclosure needs to take place to understand the asset pool, the respective entitlements of the parties need to be ascertained, and third parties such as the superannuation fund trustee needs to be communicated with in the process, if superannuation is to be split.
Process of obtaining consent orders
Step 1: Mutual disclosure and negotiations
The process of obtaining family law consent orders starts with discussions and negotiations between you and the other side. If you are amicable, you can handle this yourself, or you can ask your lawyer to assist you. You may need the help of a mediator to help you reach an agreement, in parenting matters this is done by Family Dispute Resolution (FDR), there are many providers of FDR services both private and government funded such as Relationships Australia. If you are not able to reach agreement, you can contact Jano Family Law to discuss your options. In financial matters, you will also need to exchange full and frank disclosure of your financial circumstances, this is compulsory.
We are able to offer you a 90 day, fixed fee retainer for the process of Mutual Disclosure and Negotiating a Settlement, please see our Fees page for more details. Why do we offer a 90 day, fixed fee retainer for this process? Well, first of all, the process can be quite time consuming and we have seen clients come to us after having spent months and tens of thousands of dollars engaging in correspondence and negotiations without any progress in their matter. Our approach is to work efficiently and attempt to reach an agreement within a defined period, we have found that if real progress towards an agreement is not able to be made within 90 days, then your time and money may be better spent simply getting the matter into Court. Court proceedings follow a Case Management Pathway which provides a defined and structured route to successful dispute resolution within a reasonable time frame for most cases.
Step 2: Drafting all required documentation
Assuming that agreement has been reached, the next stage is to draft the proposed Minutes of Orders to be made by consent, together with the Application Form and supporting documentation. Drafting the orders is technical and should be done by a lawyer. The form itself is also quite complicated and it can take a long time to complete it correctly if you are not familiar with the requirements. If you are splitting superannuation you also need to obtain a fund valuation and provide procedural fairness to the trustee of the relevant superannuation fund. Again, drafting superannuation orders and navigating the required process is quite technical and will require your lawyer’s assistance.
Step 3: Procedural fairness – super splitting
If you are applying for a superannuation splitting order there are some additional steps which need to be taken. First of all, you need to obtain a formal valuation from the super fund. This is obtained using the Superannuation Information Kit, however some super funds have their own version of this form and will prefer you to use that. Many super funds require that this form is signed and posted to them, some funds will accept the form by email or through your client portal.
Once you have received back the information from the super fund, you then need to send them a copy of the proposed orders asking the Trustee to consent to the orders. Super splitting orders are complex and technical, you will need the assistance of a family lawyer experienced in dealing with superannuation whether it be an accumulation fund, a defined benefit fund, an industry fund or a SMSF. You will receive a letter back from the Trustee confirming that the Trustee has no objection to your proposed orders, this letter will need to be filed at Court along with the earlier valuation letter.
Step 4: Filing at Court
Once all the documents have been prepared and signed by the parties and their lawyers, the application must be filed at Court. This will involve filling in a further online form using the Commonwealth Courts Portal (CCP) and uploading the documents to be filed. Again, if you are not familiar with navigating the online portal or if you do not have all the necessary information at hand, you may find this to be quite time consuming.
There is no doubt that the best way to get your Consent Orders done is through a competent family lawyer who will navigate the process for a fixed fee and who will pay careful attention to the drafting of your orders to make sure that the effect of the orders is exactly as you intended and that all technicalities have been properly attended to.
Step 5: Receive your sealed orders
It will take about four to six weeks for a Registrar of the Court to review and decide on your application. As long as there are no requisitions, the Court will make the orders and upload the engrossed and sealed orders to the Portal. The Court does not send out hard copies of consent orders. If you need a physical copy for some reason, your lawyer can make a certified true copy for you.
What if I receive requisitions?
If the Court is not able to make the orders you have requested, you will receive a letter from the Court containing requisitions to be dealt with before the matter can proceed. If the requisitions are not satisfactorily addressed within the required time frame, your matter will be dismissed and the orders will not be made. If you have received requisitions in relation to your Application for Consent Orders, do not hesitate to contact us for assistance.
Consent Orders FAQ
Helpful answers to frequently asked questions about consent orders.