What is a Consent Order?
A consent order is a legally enforceable agreement made by a Judge or approved by the Court. In family law a consent order can relate to either parenting of a child or property settlement. A parenting order is a set of orders made by a Court about parenting arrangements for a child. Property orders are a set of orders from a Court regarding the division of property or payment of money to a spouse or partner. A Court can make a parenting order or property order after a Court hearing or trial or based on an agreement between the parties (consent orders).
If you have reached an agreement with your spouse or partner about parenting arrangements or property and financial matters, to formalise the agreement into writing and make it binding you can apply to the Family Court of Australia for consent orders. If the Court is satisfied your proposed orders are just and equitable in property and financial matters and are in the best interests of the children for parenting arrangements, the Court will make the orders and provide you with a sealed copy.
How do I apply for a Family Court Consent Order?
Once an agreement has been reached by both parties about parenting, properties and finances, they need to formalise in the form of a binding agreement. At which point, you can apply to the Family Court of Australia for consent orders. Here we outline information in relation to parenting, financial and property matters that you may face when applying for consent orders. The most important consideration when making parenting orders in the eyes of the court is simply what is in the best interests of a child. Before they can make a consent order, the court has to be satisfied that the agreement is just and equitable as well as being in the best interests of the children. If you need legal advice regarding applying for consent orders, contact our friendly and understanding team today to make sure you get the outcome you need to move on with your life.
What is a Minute of Consent?
When you apply to the Family Court to make consent orders, there is a particular format required for the document that sets out your proposed consent orders. This document is referred to as the Minute of Consent.
How much to file Consent Orders?
The current Court filing fee for consent orders is $165.00. However, you may be eligible for an exemption from this fee on the basis of financial hardship, or if you are the primary cardholder of a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Care or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to Commonwealth health concessions.
How long do Consent Orders take to Process?
If you have submitted your documents correctly and the Court is satisfied in making the consent orders, you will usually receive the sealed orders within 4 to 6 weeks from the filing date.
Are Consent Orders Legally Binding?
Consent orders are legally binding in the same way as if a Judge had determined your matter and made orders.
There are only limited circumstances when an order in relation to property / financial matters can be overturned such as:
- by reason of fraud;
- suppression of evidence / failure to disclose relevant information;
- giving of false evidence;
- proceeds of crime order subsequently made;
- circumstances having arisen since the order was made where it is impracticable for part of the order to be carried out;
- circumstances of an exceptional nature have arisen since the order was made relating to the care, welfare and development of a child of the relationship where a party caring for the child suffer hardship if the order is not varied; or
- due to a person’s default under the orders it is just and equitable to vary the order.
In parenting matters, once orders are made they are in force until the children turn 18 years of age, unless a new parenting order or parenting plan changes it in some way. If you and the other party agree to change the arrangements, you may enter into a parenting plan or apply for consent orders that vary the existing orders.
Why get Consent Orders over a Parenting Plan?
A parenting plan is a written agreement outlining parenting arrangements for the children signed by both parents. You do not submit a parenting plan to the Court as you do with consent orders. For this reason, a parenting plan it is not legally enforceable by the Court and thus they do not have the same consequences and you do not have the same rights of enforcement for any breaches of a parenting plan as you do with a parenting order. If you require your parenting agreement to be enforceable by a Court, you should formalise the agreement into consent orders.
What if Consent Orders are Breached?
Provided a parenting order (regardless of whether made by consent or determined by a Court) has not been altered by a subsequent parenting plan, the Court can penalise a party for failing to comply with a parenting order. If a parenting order is breached, you may wish to file a contravention application. The Court will consider all the facts to determine if:
- the contravention was established or not;
- the contravention was established but there was a reasonable excuse;
- if there was a less serious contravention without reasonable excuse; or
- if there was a more serious contravention without reasonable excuse.
If the Court determines a party has failed to comply with a parenting order without reasonable excuse, depending on the circumstances and the type and seriousness of the contravention, the Court has the power to:
- vary the parenting order;
- order a post separation parenting program be attended;
- compensate for lost time with the children as a result of the contravention;
- require a bond be entered into;
- order the other party’s legal costs to be paid (either partially or in full);
- order compensation for reasonable expenses lost as a result of the contravention;
- require community service to be participated in;
- order a fine to be paid;
- order a sentence of imprisonment;
- adjourn the case to allow the other party to apply for a further parenting order.
It is important to obtain independent legal advice to ensure you are aware of your legal rights and responsibilities and understand the meaning, effect and consequences of the orders you are seeking. Our expert family lawyers can advise you if your agreement is just and equitable and/or in the children’s best interests and likely to be approved by the Family Court.
Contact our friendly and understanding team today to get the outcome you need to move on with your life.