Family Law Consent Orders
Family law Consent Orders are orders made by the court following the breakdown of a relationship by agreement between all parties. They can be made to vary or discharge earlier orders or to put in place a formal arrangement for the first time. Consent Orders may relate to parenting, or property or spousal maintenance matters, or a combination of these issues. Consent Orders are made with the agreement of both spouses or partners or both parents of a child, and may also include third parties if relevant, such as grandparents, or an entity.
How are consent orders made?
Consent Orders are typically made via an Application for Consent Orders made administratively to the Court. Applications for Consent Orders can only be filed in the Federal Circuit and Family Court of Australia (FCFCA). These applications are now made primarily electronically via the court’s portal. The court’s website provides the form for completion which is ultimately uploaded to the portal.
The following supporting documents are required to be filed with the application:
- Minute of Order – these are the orders the parties are asking the court to make on a final basis by agreement;
- Notice of child abuse, family violence or risk – if parenting orders are sought, each party must complete this Notice and file it with the court.
The filing fee for an Application for Consent Orders is $170. This must be paid at the time of filing by the applicant. The court is not concerned with how the fee is ultimately shared between parties. Applications for an exemption from fees or an exemption on the basis of financial hardship can also be made to the court.
Consent orders – parenting matters
You can file an Application for Consent Orders relating to parenting matters at any time until a child turns 18. If an order already exists and the new orders are intended to vary or discharge them, you need to provide the court with sealed copies of the existing orders.
Consent orders – financial matters
You can file property or spousal maintenance-related Consent Orders following the breakdown of a marriage within 12 months of a Divorce Order taking effect. An application for property settlement or maintenance following the breakdown of a de facto relationship can be made within 2 years of the date of separation. Applications can be made after this time limit by agreement and when a corresponding order seeking the application be made ‘out of time’ is sought in the Minute of Order.
How is the application decided?
An Application for Consent Orders, along with the orders sought and any other supporting documents filed with the court, are the only documents that the court then has before them when considering the application and whether to make the orders.
Applications for Consent Orders are typically considered by Registrars of the FCFCA. Registrars have the power to make final orders by consent.
When considering parenting orders, the Registrar will need to consider whether based on the information provided that the orders are in the best interests of the child or children to which they relate. When considering property settlement matters, the Registrar will need to consider whether the proposed orders for property adjustment are ‘just and equitable in all of the circumstances’.
To make these determinations the Registrars will review in detail the Application for Consent Orders. It is therefore important that the documents are accurately completed and provide sufficient information to satisfy the court as to the particular circumstances of each case, given each case is different and will fall on their very own facts and circumstances. It is important to note that whilst parties following the breakdown of a relationship may agree on the final outcome, or final adjustment to occur, they do not necessarily have to agree on how that outcome is arrived out or achieved. That is to say, the application provides for the applicant and respondent to have separate space to respond to certain questions relating to both parenting and property matters. On the basis, the positions both support the same outcome, it is likely the orders will be made by the court.
Pre-action procedures require disclosure to be provided and complied with, as far as practicable, prior to the commencement of court proceedings in order to narrow the issues in dispute and attempt to reach a resolution by agreement out of court. The provision of financial disclosure and other relevant information is required to be provided when reaching agreement and proposing the outcome be formalised by way of an Application for Consent Orders. The Statement of Truth attached to an Application for Consent Orders requires each party to confirm to the court that “I have no interest in property, superannuation, or a financial resource which is not described” in the Application, along with confirming that “the matters stated in this application that are within my personal knowledge are true and all other facts are true to the best of my knowledge, information and belief and the order sought are supported by evidence.”
A failure to fully disclose financial circumstances in a property matter may lead to an application by the other party to set aside orders at a future point based on non-disclosure. The main goal of property settlement orders made following the breakdown of a relationship is to provide a clean financial break and be a once and for all adjustment of property.
Court may seek more information
The family law jurisdiction is highly discretionary which means that there is likely to be a range of outcomes that can be achieved in any one case following a final hearing before a Judge. Should a Registrar not be satisfied that proposed orders fall within the likely range of outcomes the Registrar may requisition the application and seek further information or an affidavit on various points in order to satisfy themselves as to the circumstances of the case and suitability of the proposed orders. A requisition may require one or both parties to undertake further steps in order to satisfy the Registrar of the orders. It is usually that a requisition will be permitted 6 weeks to be responded to before the Registrar will reconsider the matter.
Orders that are made by consent will have the same force and effect as Judge made orders once they are made on a final basis and ‘sealed’ by the court. It is important therefore to take particular care in the drafting of orders to ensure that they are clear, unambiguous and enforceable. Further, the orders need to ensure they require certain steps or tasks to be properly undertaken to achieve the requisite outcome.
You should seek tailored family law advice on your matter to ensure the Application for Consent Orders is appropriately completed, and the orders are appropriately set out and drafted effectively.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.