Consent orders property & children

When you reach an agreement with your former spouse concerning parenting or financial issues, you are not required to notify the court. As long as both of you abide by the terms of the agreement, there may never be a need for court involvement.

There are, however, advantages to formalizing your agreement by turning it into a court order. You can easily do that by apply to the court for a consent order.

This eBook explains the advantages of consent orders and describes the process of applying for one. We hope that you will find this knowledge useful, but remember that an eBook can only give you general information. This eBook does not and cannot give you legal advice and it is not a substitute for a legal opinion. If you need help drafting the terms of a consent order or have specific questions about consent orders that you might need or how a consent order might affect your case, you should consult a family law attorney.

What is a parenting or financial consent order?

If you and your spouse cannot resolve parenting or financial disputes through negotiation or mediation, you can apply to the Family Law Courts for a parenting or financial order. An appropriate court will resolve the dispute in the form of a court order that all parties are required to follow. In most cases, however, disputes can be resolved by agreement without the need for court intervention. The Family Dispute Resolution (Mediation) eBook in this series describes the steps you and your former spouse can take to reach an agreement.

After reaching an agreement, you and your former spouse can apply to the court for a consent order. As its name implies, a consent order is an order that the court enters with your consent. It is an order formalizes an agreement that you made with your spouse. A consent order gives that agreement the same binding effect as a court order made by a judge after a trial.

In most cases, former spouses will apply for a consent order instead of applying for a final order. If you have applied for a final order and are able to resolve your dispute before (or even during) a court hearing, you can still apply for a consent order.

Why would I want a consent order?

You are not required to seek a consent order. If you and your spouse are getting along and are both likely to comply with the terms of agreements you have made, a consent order might be unnecessary. Still, there are many reasons to believe that formalizing your agreement with a consent order would be a wise choice.

People change. One reason people divorce is that their feelings change or they come to believe that their spouse has changed. You might trust your former spouse to honor the agreement you have made, but your former spouse might have a change of heart or might be influenced by someone who comes into his or her life.

Your former spouse might be persuaded that the agreement he or she made is a bad deal and, if that happens, might refuse to comply with its terms. You have no easy way to enforce the agreement if you did not obtain a consent order. Your only recourse might be to apply for a final order. That means you are investing time and money you would have saved by obtaining a consent order.

Also keep in mind that the court is not required to consider applications for financial orders that are made more than one year after your divorce becomes final. If, for instance, you made an informal agreement to receive spousal maintenance and your spouse decides to stop paying maintenance to you more than a year after you divorced, it might be too late to seek a financial order.

Unlike informal agreements, a consent order has the same binding force as any other court order. If your spouse stops complying with a consent order, you can seek sanctions and other remedies from the court that will compel your spouse to obey the order. The ability to enforce a consent order is a significant advantage that informal agreements lack.

You can also use a consent order to change (or vary) the terms of an existing parenting or financial order. For instance, if both parents want to change a court-ordered schedule on which one parent has contact with a child, you can ask the court to make that change by applying for a consent order.

Are there issues a consent order cannot cover?

Most consent orders cover parenting or financial issues. For information about the kinds of issues that might be addressed in a parenting order, see the Children and Divorce eBook in this series. For information about issues you can address in a financial order, see our Property Settlements and Spousal Maintenance eBook.

There are certain issues the Family Law Courts cannot address by means of a consent order. They include:

• Child support. In most cases, child support assessments are made administratively by the Child Support Registrar. If you have come to an agreement on child support, the agreement must usually be submitted to the Registrar, not to the Family Law Courts. You may be able to obtain a child support maintenance order by consent, but only if you are not eligible for an administrative child support assessment. See the Financial Support for Children eBook in this series for more information about child support.
• An order requiring a step-parent or non-parent to pay child maintenance.
• Parenting orders involving a person who is not a biological or adoptive parent, a grandparent, or other relative of the child.
• A declaration of the existence of a de facto relationship.
• Orders for medical procedures.
• Cross-vesting orders.

Can I ask for a consent order that affects a superannuation plan?

To the extent that the court has the authority to make orders affecting a superannuation plan, you can ask the court to do so by entering a consent order. You can, for instance, agree upon an order splitting superannuation payments that are payable to a former spouse.

Before a consent order can be made binding on the trustee of a superannuation plan, you must notify the trustee of the plan that you intend to apply for a consent order. The Family Law Rules require you to provide the following information to the trustee at least 28 days before you apply for the consent order:

• The terms of the order you seek (to the extent that those terms bind the trustee);
• If court proceedings have already been commenced, the date of the next court event;
• Your intent to apply for the order unless the trustee objects in writing within 28 days.

Your application for a consent order that affects a superannuation trustee must advise the court that you have complied with this requirement.

Will the court automatically enter any consent order I submit?

Courts are responsible for the orders they enter. A court cannot enter an order (even a consent order) that does not comply with the law. The law requires financial orders entered in family court matters to be reasonable and fair. Parenting orders must always be made in the best interests of the children. If the judge believes you are asking for an order that is unreasonable, unfair, or not in the best interests of the children, the judge will not enter the order.

In addition, if the judge believes the proposed order is not truly the product of consent but was obtained by coercion or made under duress, the judge will not enter the order. In some cases, the court may schedule a hearing in order to obtain additional information before it will agree to enter your consent order.

Judges want parties to settle their disputes. Most judges believe that the settlement you make with your spouse is likely to be better for you than any resolution of the dispute that the court would make. If you are happy with your agreement, the judge is not likely to stand in your way, provided that the agreement complies with the fundamental principles of family law.

Judges are likely to give greater scrutiny to proposed parenting orders than to proposed financial orders because of the importance that family law places on the best interests of the children, but in most instances judges will defer to the parents, who usually know what is best for their children.

If you are asking for a consent order that addresses parenting issues, the court cannot enter your order unless each party certifies that neither the child nor any family member is at risk of violence. If allegations of family violence have been made earlier, the parties must explain how the proposed order protects against future incidents of violence.

What should I include in a consent order?

If you are applying for a financial order, read our Property Settlements and Spousal Maintenance eBook to get a better idea of the principles that govern property settlements and spousal maintenance. If your order makes a property settlement, you should read sections 78 and 79 of the Family Law Act 1975. If your order requires the payment of spousal maintenance, you should read sections 72, 74, and 75 of the Family Law Act 1975.

If you are applying for a parenting order, read our Children and Divorce eBook to better understand the issues you will need to address. You should also read sections 60B, 60CA, 60CC, 61DA, 64B, and 65DAA of the Family Law Act 1975. The court is unlikely to approve a consent order that deviates significantly from the principles reflected in those sections.

How do I apply for a consent order?

In the Family Laws Courts, you apply for a consent order by filing an application. You may be required to pay a filing fee. You can obtain the application, along with a set of instructions and related materials, in an Application for Consent Orders Kit that is available online as a PDF file.

Print the application and fill it out. The application requires you to provide information about you and your spouse, about your children (if you are seeking a parenting order) and about your income, assets, and debts (if you are seeking a financial order). Part J of the form is a Statement of Truth in which you declare that you have reviewed the relevant laws and that you answered each question accurately and completely.

Then prepare the draft consent orders that you need. Each order should appear in a separately numbered paragraph. For instance, in a parenting order one paragraph might address shared parental responsibilities, a second paragraph might specify where the children will live, and a third paragraph might define the schedule on which the parent who is not living with the children will have contact with them.

Consult the Supplement to the Application for Consent Orders Kit to acquaint yourself with the standard format of a consent order (including appropriate captions and introductory language). If you are not comfortable drafting the order yourself or are uncertain of the language you want to use, it is best to get advice and assistance from a family law attorney.

Warning and Disclaimer
Consent Orders by Alan Weiss is a self-help eBook written from the perspective of the author.

The author does not claim to be a substitute for a lawyer. Nor does he claim knowledge of any individual’s situation. This EBook does not give legal advice its aim is to give practical advice. Visit Aussie Divorce to find the right divorce lawyer.