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Introduction
Separation and divorce often bring with them difficult questions about parenting arrangements, property division, and financial support. Many families find themselves caught between wanting a binding resolution and wishing to avoid the stress and expense of prolonged litigation in the Family Court. In these circumstances, consent orders can be an effective legal tool to formalise agreements in a binding and enforceable way without proceeding to a contested hearing.
Consent orders provide a structured pathway for parties who have already reached an agreement but want to ensure it carries the weight of a court order. They cover both parenting matters, such as where children live, how much time they spend with each parent, and decision-making responsibilities, as well as property and financial settlements.
Understanding when and how to use consent orders can make a significant difference in protecting rights, reducing conflict, and avoiding future disputes. If you are dealing with this situation, it’s crucial to seek professional guidance. You can consult with Burwood Family Lawyers for tailored legal advice.
What Are Consent Orders?
Consent orders are written agreements that are approved by the Family Court or the Federal Circuit and Family Court of Australia (FCFCOA). Once sealed by the Court, they become legally binding orders, carrying the same enforceability as if a judge had made them after a contested trial.
These orders may cover:
- Parenting arrangements for children, including time, communication, and parental responsibility.
- Property settlements, including division of assets, liabilities, and superannuation.
- Spousal maintenance arrangements, either short-term or ongoing.
Consent orders are governed primarily by the Family Law Act 1975 (Cth). Under sections 79 for property and financial matters and 65D for parenting orders, the Court has the power to make orders by consent, provided the agreement is just and equitable for property, or in the best interests of the child for parenting.
Unlike informal agreements or parenting plans, consent orders are enforceable through the Court. This means that if one party fails to comply, the other party can seek enforcement or penalties.
Why Consent Orders Are Used in Parenting Matters.
For separated parents, the welfare and stability of children are paramount. Consent orders can formalise arrangements about:
- Where a child will live.
- How much time the child spends with each parent or other relatives.
- Decision-making responsibilities regarding education, health, and religion.
- Conditions around travel, communication, or relocation.
The best interests of the child is the overriding consideration under Part VII of the Family Law Act 1975. Section 60CC outlines primary considerations, including the benefit of a child having a meaningful relationship with both parents and the need to protect the child from harm.
A well-known precedent is Goode v Goode [2006] FamCA 1346, which clarified the Court’s approach to shared parental responsibility and highlighted that the child’s welfare remains central in approving consent orders.
Consent orders in parenting matters are particularly useful where parents have reached an agreement but want certainty. Unlike a parenting plan, which is a flexible document without legal enforceability, a consent order ensures compliance and gives parents a mechanism for resolution if disputes arise later.
Why Consent Orders Are Used in Property Settlements.
Financial matters after separation are often complex, involving assets such as the family home, investments, businesses, superannuation, and liabilities. Consent orders provide a way to divide property and financial responsibilities without ongoing conflict.
Under section 79 of the Family Law Act, the Court must ensure that any financial agreement is just and equitable. The leading High Court authority Stanford v Stanford [2012] HCA 52 reinforced that property settlements should reflect fairness and not simply divide assets mechanically. The Court considers:
- The financial and non-financial contributions of each party (s 79(4)).
- Future needs, including earning capacity, health, age, and care of children (s 75(2)).
- The overall justice and equity of the settlement.
Consent orders in property matters ensure that transfers of property, superannuation splits, or debt allocations are enforceable and final. This finality is critical because, once sealed, neither party can later revisit the settlement except in limited circumstances, such as fraud or non-disclosure.
The Advantages of Consent Orders.
Consent orders offer several important benefits compared to informal agreements or prolonged litigation:
Enforceability.
Once approved by the Court, consent orders are legally binding. A party that breaches them can face enforcement proceedings or penalties, providing security and certainty for both parties.
Cost and Efficiency.
Applying for consent orders is generally less costly and faster than going through contested court hearings. It avoids the delays and emotional strain of litigation while still giving parties access to a formal, binding outcome.
Tailored Solutions.
Because the parties propose the terms, consent orders can reflect their unique circumstances rather than leaving the decision entirely in the hands of a judge.
Reduced Conflict.
By reaching an agreement collaboratively, parties are more likely to comply with the terms, reducing the potential for future disputes.
Protection of Children’s Interests.
Consent orders relating to children are carefully scrutinised by the Court to ensure they promote the child’s best interests, adding an additional safeguard.
The Legal Process of Obtaining Consent Orders.
The process for obtaining consent orders is relatively straightforward but requires careful preparation.
Application and Drafting.
The parties jointly file an Application for Consent Orders with the Court. This includes detailed financial information, proposed property settlement terms, or parenting arrangements. Supporting documents, such as affidavits, may be required in more complex matters.
Court Review.
The Court will review the proposed orders to ensure they meet the legal thresholds:
- For parenting orders: whether the arrangements are in the child’s best interests.
- For property orders: whether the settlement is just and equitable.
If satisfied, the Court will seal the orders, making them binding. If not, the Court may request clarification or reject the application.
No Need for Court Appearance.
In most cases, neither party needs to attend Court. The process is administrative, provided the paperwork is complete and legally sound.
Limitations and Risks of Consent Orders.
While consent orders provide many advantages, there are limitations and potential risks to be aware of.
Finality in Property Matters
Once property orders are sealed, they are generally final. This means that if circumstances change, such as one party later experiencing financial hardship, they usually cannot revisit the settlement.
Potential for Unfairness.
If one party has significantly more bargaining power or legal knowledge, the agreed terms may not be equitable. Although the Court reviews the orders, it relies heavily on the information provided, which means non-disclosure can create unfair outcomes.
Limited Flexibility.
Unlike parenting plans, consent orders are rigid. If circumstances change, for example, a parent moves interstate, varying the orders may require a new application to the Court.
Risk of Non-Compliance.
Although enforceable, if one party consistently breaches the orders, the other may face repeated applications for enforcement, creating further stress and expense.
When Consent Orders May Not Be Appropriate.
Consent orders are not always the best option. Situations where they may not be suitable include:
- Family violence cases where one party may feel pressured into agreement.
- Uncertain or rapidly changing circumstances, such as very young children whose needs may evolve.
- Where parties cannot reach a genuine agreement, in which case litigation or mediation may be necessary.
In such cases, the Court may decline to make the orders or recommend that the parties seek alternative dispute resolution.
Practical Implications for Individuals.
For separating couples, understanding the role of consent orders is critical to making informed decisions. Key takeaways include:
- Consent orders are best used when both parties have reached a genuine agreement but want legal certainty.
- They provide enforceability that private agreements lack.
- They require full and honest financial disclosure to avoid later challenges.
- Legal advice is strongly recommended before signing, as the orders can have long-term and sometimes irreversible consequences.
Conclusion.
Consent orders play a vital role in Australian family law by providing a binding, enforceable, and cost-effective way to resolve disputes over parenting and property matters. They give parties certainty and protection while reducing the adversarial nature of family law litigation. However, they are not without risks, particularly the finality of property settlements and the potential for unfairness if parties are not on equal footing.
Ultimately, deciding whether to apply for consent orders depends on the specific circumstances of the case, the willingness of both parties to reach an agreement, and the need for enforceability. Understanding the legal principles, statutory framework, and case law ensures that parties make informed choices that protect their rights and, where relevant, safeguard the welfare of their children. If you require support in navigating these issues, consider reaching out to Burwood Family Lawyers for legal advice tailored to your circumstances.
