Consent Orders - Jano Family Law

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.

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.

Fixed fee

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.

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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.

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.

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.

What do you charge for consent orders?

Jano Family Law is a fair fee and fixed fee family law firm. Please visit the Fees page for current fee details.

Prior to commencing any work we will always provide you with a Costs Disclosure or a Costs Agreement as required under the Legal Profession Uniform Law.

Can I split super using consent orders?

Yes. You can include superannuation splitting in your overall financial/property consent orders, or you can apply for a consent order that only splits your super. In any case in every family law property settlement, superannuation is always taken into account.

Can I save stamp duty by using consent orders?

Yes. There is a stamp duty exemption under the Family Law Act 1975. In order to satisfy the exemption from stamp duty you must generally prove that your relationship has permanently broken down, a property is to be transferred to one party of the relationship or their child, and the property transfer is made in accordance with a binding financial agreement or consent orders under the Family Law Act 1975. The exact details vary slightly from state to state. The State Revenue Office has set out the relevant criteria in Victoria.

When can we apply for consent orders?

You can apply for parenting orders at any time.

For property and financial orders, an application can be filed any time after separation, but must be filed within 12 months of a divorce or two years since the end of a de facto relationship. Outside of this time frame, you can still apply for consent orders with the agreement of the other party by including the relevant clause in your Draft Consent Orders.

Beware however if you are not able to reach agreement within the time periods referred to above, you will need to commence proceedings in court before the time period expires.

What if I cannot agree on financial/property settlement in time?

If you cannot finalise your financial matters within the set time frame then you must commence proceedings in either the Federal Circuit Court of Australia or the Family Court of Australia before the 24 month (end of a de facto relationship) or 12 month (divorce) period expires to protect your interest in any property of the relationship whether held jointly or solely (by yourself or your partner).

If you have missed the time frame for a financial/property settlement you will need to make a special application and first prove to the court that you or a child of your relationship will suffer or is suffering financial hardship. You must also include a reason as to why your matter was not brought before the court within time limitations set by the law.

Although it is not impossible to finalise your financial relationship with your ex-partner even if your matter is out of time it is more complicated. It is always preferable that you either finalise your property matter or commence property proceedings within the relevant timeframe.

What happens after filing the consent orders?

After you file your application for consent orders, a registrar at the court will review and consider the application and the draft orders. If the registrar thinks the order should be made, they sign the orders and send you sealed (stamped) copies. This process can take several weeks. If the registrar does not think the order should be made, they will send you a brief letter containing requisitions that must be addressed before the matter can proceed. Your application may also need to be considered in court by a judge.

What is included in the fixed fee?

1. We take detailed instructions from you about the agreement you have reached and provide general advice.
2. We then draft your agreement into a document called the Draft Consent Orders in the specific format that the court requires.
3. We also prepare the Application for Consent Orders, which is a form that also has to be filed with the court.
4. We send all the completed paperwork to you for approval. We can make changes if needed based on your feedback.
5. If superannuation is being split, we give procedural fairness notice to the trustee of your super fund and provide them with a copy of the draft orders for their approval.
6. Once you are satsfied with the documents, we email them to you to obtain your signature and the signature of your ex-partner.
7. You return the signed documents to us and we file them electronically with the court, together with the consent of the supeannuation trustee to the orders (if super splitting only).
8. We take your instructions and respond to any questions (requisitions) the court may have.
9. Once the orders have been approved and sealed by the court, we will send them to you.

What is not included in the fixed fee?

Additional costs may apply in certain situations, for example:
1. If you and your ex-partner have not exchanged full and frank disclosure, or you have not reached agreement on certain points and you ask us to assist in negotiating an agreement.
2. If your superannuation fund is a self-managed fund, or is a defined benefit fund.
3. If there are complex financial arrangements such as those involving trusts, off-shore assets, contractual rights, etc., or if the value of the property to be dealt with is well above average.

Will I need to go to court?

If you and your former partner agree on the future arrangements for your child/ren after separation you do not have to go to court, you can make a parenting plan, or obtain child/parenting consent orders approved by a court. A parenting plan is an informal document that is not legally enforceable even if you have both signed it. Consent orders are made by the court and are legally enforceable. For this reason consent orders are by far superior to parenting plans. Many people will agree on a parenting plan and then ask a lawyer to convert their parenting plan into child/parenting consent orders.

The same holds true for property settlement, if you are able to agree you can obtain a financial/property settlement by way of consent orders without going to court.

Can we DIY our consent orders?

The Family Court has published an Application for Consent Orders (do it yourself kit). The reality is that this is no easy process and there are many pitfalls. Given the grave importance of child/parenting and financial/property matters, it is highly recommended to seek the assistance of a family lawyer, especially since fixed fees have done away with the fear of being over-charged.

Will the Judge approve our DIY consent orders?

If the orders strictly meet all the relevant criteria, then yes. The reality however is that the Family Court registrars frequently encounter difficulties with consent order applications and in such a case the judge will not even get to see your application, let alone approve it. The orders will be sent back with requisitions. Furthermore those orders that do make it past the registrars and come before the Judge may still be rejected for a variety of reasons.

According to the Family Law Practitioner’s Association, the following are common issues (please note that some of these relate to consent orders being applied for in relation to court proceedings):

– In de facto property applications, the failure to provide the written consent by the parties and/or legal statement of legal advice by a legal practitioner where the parties are opting in.
– Parties using an obsolete version of the Application for Consent Orders form.
– Parties not completing all the required questions of the joint application.
– Parties not attaching copies of orders, undertakings, parenting plans or agreements or providing details of the same.
– Parties failing to provide adequate information in relevant parts of the application to address the threshold of whether the financial orders are just and equitable, especially in the situation where one of the parties is not legally represented.
– The inclusion of child support orders in the draft orders.
– The parties not providing three clean typed certified copies of the draft orders or a form of order for the registrar to sign.
– The affidavit of the applicant/respondent in the application not completed.
– Parties not supplying a valuation/completed Superannuation Information Form where a superannuation splitting order is sought.
– Parties seeking an order for the Family Law Act 1975 for “joint parental responsibility” notwithstanding the decision in NandN (2007) FamCA 168.
– Parties failing to address the issue of parental responsibility in the orders.
– The drafting of Orders to be made in the Fede

Can you check our DIY consent orders?

Given the amount of potential pitfalls in drafting consent orders, it would be an excellent idea to have your work checked by a qualified solicitor who practices in family law. If any remedial work is required, we can provide you with a fixed fee quotation.

What if we haven’t agreed yet?

A consent order is, by definition, an order that has been consented to by the parties.

1. DISCUSS: If you and your ex-partner have not reached agreement on certain points then you need to try and discuss things more.
2. NEGOTIATE: If you feel you have gone as far as you can on your own, then we can act for you by writing to the other party or their lawyer and if appropriate attending a joint conference to negotiate any outstanding issues.
3. GO TO COURT: If all else fails, you will need to to make an application to the Family Court to have them decide on your matter, this is a challenging and costly exercise that is best avoided if possible.

Can we change our child/parenting consent orders?

Once parenting orders are made by the court they cannot be changed unless both parties consent to the change or the court determines it is appropriate to change the order. For the court to change an order it must be satisfied that there has been a significant change in circumstances. For more information, please read our blog articles: Changing Parenting Orders and How Can I Change My Parenting Orders?

Can we change our financial/property consent orders?

There are very limited circumstances in which a court will allow changes to be made to final financial/property orders. When final orders are made by a court, the court deems that such orders should be final and bring an end to any litigation. Regardless, there are instances where the court may vary the final financial/property orders. In some special circumstances there could also be the possibility of bringing a claim for spousal maintenance after the financial/property settlement.

What if a person breaches, contravenes or ignores child/parenting orders?

A contravention application is an application where you ask the court to remedy or fix a breach of a court order. A breach occurs when somebody disobeys a court order. The primary aim of the court when it hears a contravention application is to get things back on track. It is not necessarily to punish the other party or to impose a penalty.

What if a person breaches, contravenes or ignores financial/property orders?

When a financial order is made, each person bound by the order must follow it. If a person has refused to obey an order about property or financial support made under the Family Law Act 1975, your options include dispute resolution or applying to the court for an enforcement order.

What are consent orders used for?

Why do I need consent orders?