Find out everything you need to know about consent orders in Australia, as written by our family lawyers in Perth.
The Ultimate Guide To Consent Orders
What is a consent order?
A consent order is an order issued by the Court detailing the terms of the divorce or separation as mutually agreed upon by both spouses or partners if in a de facto relationship. They can include whatever terms are agreed upon by both parties to suit their needs.
The main benefit of a consent order is that it allows separating couples to reach a settlement among themselves without leaving it to a judge to decide for them.
In most cases, an application to the Court for a consent order is made after mediation once both parties have agreed on the terms of their settlement.
Although applying for consent orders does not require legal representation, they follow a strict and complex procedure and require relevant supporting documents to be filed with the application.
It’s crucial for both parties to fully understand the meaning and consequences of the agreement they are proposing, so obtaining legal advice is therefore strongly recommended. An experienced family lawyer will be able to explain your legal rights and obligations, and guide you through the process of fling your consent order application.
Are there different types of consent orders in Australia?
There are two basic types of consent orders in Australia – parenting and property.
- Parenting orders by consent – These deal with all parenting matters, such as who the children will live with, shared arrangements and responsibilities, and the time the children can spend with the other parent or anyone else that may be important to them. For parenting orders to be approved by the Court, they need to be in the best interests of the children. The Court may reject the application if it does not meet that criteria.
- Property orders by consent – These can include all property and financial matters, such as the division of properties, assets and liabilities, all financial resources, superannuations and spousal maintenance. In the eyes of the law, before a financial consent order is approved by the Court, it needs to be just and equitableto both parties.
The main advantage of a financial consent order, is that no stamp duty and transfer fees are payable when transferring any properties from one partner to another, in the division of property. There are also tax implications one needs to consider, which can also be fairly complex and have serious implications, requiring professional financial advice.
Another advantage of consent orders is that it provides peace of mind, paving the way for a stress-free post-divorce parental relationship and also avoid lengthy and costly litigation.
Are consent orders legally binding?
Draft consent orders prepared at mediation are not legally binding, until they are approved by the Court. Once approved by the Court, they hold the same legal weight as any ruling taken by the Court and are legally enforceable.
This serves as a strong deterrent to anyone contemplating breaching any of their terms.
Do consent orders expire?
Consent orders have no expiry date and may last indefinitely, or until one or both parties feel that the terms no longer apply and successfully have it set aside by the Court.
How long does it take to get a consent order?
Consent orders may take between 4 and 6 weeks before they are considered by the Court. If the Court rejects the application, it will ask for further documentation, and this can delay the process.
Can I get a consent order before my divorce is finalised?
Yes. Consent order applications can be filed at any time, once you have reached an agreement with your spouse. You may then have to wait for 8-12 weeks for the Court to consider your application.
If circumstances demand a speedier process, you can choose to draw up a Binding Financial Agreement, which does not require the approval of the Court, but is as binding and enforceable as a consent order issued by the Court.
A Binding Financial Agreement does however require each of you to obtain independent legal advice.
When does a consent order take effect?
Consent orders take effect the moment they are approved by the Court.
What happens after a consent order is approved?
After a consent order is approved, you or your family lawyer/mediator will be notified by email by the Court, upon which the order immediately takes effect and both parties must abide by its terms.
Can consent orders be overturned or challenged?
Consent orders can be overturned in some very limited circumstances. By their very nature they are meant to be adhered to, and are not designed to be changed often.
Some circumstances where consent orders may be challenged or overturned include:
- A miscarriage of justice has occurred for example due to duress or the giving of false evidence
- A significant change of circumstances happened after the order was made and the order is either no longer practicable or following it will cause hardship for one/both parties
- One party has defaulted on their consent order obligations and it’s now fair to vary the order
- One party has failed to disclose relevant information that could have impacted the child’s care and/or the division of property as per the consent order
Can a consent order be changed?
Consent orders can be changed for a number of reasons by applying to the Court. It can either be by mutual agreement, or if one party feels that:
- Personal circumstances have changed
- Some conditions may no longer be practical
- The agreed terms no longer apply
In rare cases the Court may allow for an application to review its decision, if evidence suggests that fraud or dishonesty had been committed.
What happens if a consent order is breached?
Breaching a consent order equates to breaking the law.
You do however have to take your case to the Court, which has several options at its disposal.
Depending on the nature of the breach, the Court can require you to:
- attend a post-separation parenting course to help you focus on your children’s needs and change your behaviour so you don’t breach the parenting orders in the future
- enter into a good behaviour bond, which could include things like making you attend family counselling, Family Dispute Resolution, or appointments with a family consultant
- reimburse the other person for expenses they had to pay as a result of missing out on time with the children
- pay some or all of the other person’s legal costs of the contravention application
- carry out local community service work
- pay a monetary fine, or
- serve a sentence of imprisonment.
Repeat offenders may receive harsher punishments than those breaching a consent order for the first time.
How much does a consent order cost?
An application for a consent order currently costs $170, which must be paid when filing the application. If you choose to engage a family lawyer or legal professional to assist you, this will incur additional costs.
How do I apply for a consent order?
If you’re divorcing through family mediation, your mediator will assist you to draw up and file your application to the Court, after have you reached agreement with your ex, or you can file your application through your lawyer.
If you’re already divorced, you have 12 months in which to file your application for a consent order. De facto couples have 24 months to file their application, from the date of separation.
If you are not using any legal services, you can apply directly to the Family Court by filing your documents on the Commonwealth Courts portal. Considering the importance of getting a consent order and the complicated procedure required, filing an application for a consent order without receiving legal advice is generally not recommended.
At Hickman Family Lawyers, we deal with a range of family law issues including applying for consent orders and drawing up binding financial agreements at all stages of relationships.