A Consent Order is made by the Federal Circuit and Family Court of Australia (also known as the FCFCOA) formalising an agreement reached between parties following separation about the future care arrangements for a child or children and/or financial property settlement matters.

A parenting Order will only become legally binding on the parties if deemed to be in the best interest of a child or children, which requires the Court to consider both short term (interim) and long term (final) arrangements for a child or children and takes into consideration, among other things, a child’s physical and emotional well-being, and their health, education, financial, moral, cultural and religious interests.

Under Section 60CC of the Family Law Act (Cth) 1975, the best interest of a child or children includes two primary consideration and several additional consideration.

When deciding what is in the best interest of a child or children, the Courts always deal with matter individually, meaning each family is different and in some circumstances, additional considerations can be given more importance.

It is important to remember that the ‘best interest’ of a child is given paramount consideration by the Court.

A parenting Order can deal with a wide range of issues, including but not limited to, the following:

• Who a child or children live with;
• How much time a child or children should spend with each parent;
• Whether one (1) or both parents should have equal shared parental responsibility in relation to the major longer-term decisions for a child or children, for example:
  • Where a child shall live;
  • Medical decisions;
  • A child’s name;
  • Decisions regarding religion or cultural upbringing; and
  • Passports.
• How and when a child or children will communicate with the parents and other people that do not live with a child that are significant to a child, for example, a grandparent, aunty or uncle etc.
• How the parties will deliver the child or children at the end of their time to the other parent, for example, a location of equal distance to where each parent lives or the child’s school or day care.
• How a child or children will spend special occasions with each parent, for example, Christmas, Easter, birthday or special days that are important to a parent’s culture.

A financial settlement, also know, as property Orders sets out how de facto property or matrimonial property should be divided following separation.

An Order dividing property of a relationship must be seen by the Court to be ‘fair and equitable’ and can include a range of assets and/or liabilities, including but not limited to the following:

• Real Property i.e. house and land;
• Household effects and personal property i.e. furniture, household items and jewellery etc.
• Superannuation;
• Self-managed superannuation fund (SMSF);
• Business interests;
• Trust interests;
• Motor vehicles;
• Recreational vessels i.e. boats and jet ski;
• An inheritance;
• Debts and loans;
• Taxation liabilities;
• Business liabilities etc.

Provided there is an agreement between the parties Consent Orders can be prepared and filed in the Court in a timely and effective manner using our three (3) step process.

1. Identifying the agreement regarding children or property;
2. Preparation of the necessary documents that must be filed in the Court, for example, an Application for Consent Orders and Orders setting out the agreement, which is also known as a Minute of Consent Orders. If seeking parenting orders, a Notice of child abuse, family violence or risk must also be filed;
3. Lodging the relevant documents with the Court.
   
   

Provided the Court is satisfied that the agreement proposed to be formalised into a legally binding document is in the best interests of a child or children, or is ‘fair and equitable’ the Court will make the Orders and you will each received a sealed Order for your records.

Financial Orders

An Application for Consent Orders can be filed at any time after separation but must be filed within twelve (12) months of a Divorce Order being made, or within two (2) years of the end of a de facto relationship.

Parenting Orders

There are no time limits for the filing of Consent Orders regarding care of a child or children.

In short, yes, a Consent Order is legally binding on the parties.

When the Court makes a Final Order, this agreement becomes legally binding on the parties and will set out what steps need to be taken to formalise the agreement, for example, the transfer of a property title or a superannuation splitting Order.

For parenting Orders, the agreement will set out the future care arrangements for a child or children and how time is to be spent with either parent and any significant persons, such as aunts, uncles or grandparents etc.

Depending on the complexity of the agreement, or if there is no agreement, it can take time to prepare the paperwork i.e. Application for Consent Orders, Minute of Orders and other supporting documents for signing by the parties.

Depending on your financial circumstances, the Court may require the parties to pay a court filing fee. If you hold a pension card or Centrelink card you may be eligible for a reduced filing fee or fee waiver. In some circumstances, the Court will require you to provide evidence of your financial position, particularly where you are seeking a fee waiver for financial hardship and where you do not hold a government benefits card.

The Court does not look upon parties lightly that contravene, also know as breach, a Consent Order unless you have a reasonable excuse to do so, which may include:

1. Paying for any expenses incurred by the other party for having to file a further application in the Court because of the contravention;
2. Paying some or all of the other parties legal costs;
3. Community work;
4. A fine; or
5. A jail term of up to twelve (12) months or more for serious contraventions.

It is possible to change your Consent Orders however, the Court will need to be satisfied that there has been a ‘significant change of circumstances’ or ‘some material factor not disclosed’ which would justify ‘such a serious step’ to change the existing Orders.

This is known as the Rice v Asplund (1979o FLC 90-725 (link) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1978/84.html?context=1;query=rice%20v%20asplund;mask_path= Threshold test.

Provided it is safe to do so and you are not breaching the conditions of a domestic and family violence protection order (if you have one), you firstly need to contact the other party (or parties) and discuss the types of changes you wish to make to the existing Order.

If you are successful in reaching an agreement you can file an Initiating Application in the Court with the proposed Minute of Orders where the Court will then consider whether to grant the Orders.

If other party is not agreeable to amending the Orders, the party wishing to vary the terms of the existing Orders would need to initiate a Family Dispute Resolution Conference where a Section 60I Certificate will be issued by the mediator where there is no agreement, which will be filed with the Initiating Application to show the Court that you have made every attempt to resolve the dispute without the intervention of the Court.

There are some circumstances where an application can be brought without the need for mediation, where there are reasonable grounds to believe that:

• There has been abuse of a child by one of the parties.
• There is a risk of abuse of a child if there were to be a delay in applying for an Order. An urgent / imminent risk of harm will be necessary.
• There has been family violence or there is a risk of family violence by one of the parties.

OR

The application is made in circumstances of urgency;

One of the parties is unable to participate effectively in mediation, for example, because of an incapacity, because the other person is overseas or because the other person is unable to be located in order to invite them to participate in the mediation process;

If you are filing an Application Contravention in relation to an Order that is less than 12 months old and there are reasonable grounds to believe that the person who has contravened the Order has behaved in a way that shows a serious disregard for his or her obligations under the Order.

If you are intending to initiate Court proceedings without a Section 60I Certificate, you must also file an Affidavit of Non-Filing Dispute Resolution Certificate, or explain in your Affidavit the reasons you are claiming an exemption from participating in mediation first.

Some parties prepare the avoid the stress and expenses of going back to Court and set out the terms of the new agreement in a Parenting Plan. Although not legally binding, a Parenting Plan sets out the intention of the parties at the time of entering into the Agreement, which can be considered at a later date should either party start the Court process again.

Remember, it is always best to firstly try to:

Discuss                  →            Negotiate              →            If no agreement…go to Court!

Generally speaking, in terms of financial settlement Orders, the Orders are based on an agreement reached between the parties as to the division of the assets and in some circumstances, the liabilities of the relationship and are usually finalised shortly after the Order is granted by the Court.

If one of the parties were able to prove that they had been forced into agreement to the terms of the Orders and the agreement was not voluntarily, they could make an Application to the Court seeking that the original Orders be set aside and replaced by new Orders.

It is important to remember that the Court will only accept the Orders if the terms are ‘just and equitable’.

For most people, the stress of having to go back to Court with a  fresh Application and the cost of legal fees weighed up against the overall outcome you may receive if successful should cautiously be considered before bringing a further Application.

If you feel that you have been pressured to sign Consent Orders it would be advisable that you seek independent legal advice immediately. It is important to remember that you will need to weigh up

If other party is not agreeable to amending the Orders, the party wishing to vary the terms of the existing Orders would need to initiate a Family Dispute Resolution Conference where a Section 60I Certificate will be issued by the mediator where there is no agreement, which will be filed with the Initiating Application to show the Court that you have made every attempt to resolve the dispute without the intervention of the Court.

There are some circumstances where an application can be brought without the need for mediation, where there are reasonable grounds to believe that:

• There has been abuse of a child by one of the parties.
• There is a risk of abuse of a child if there were to be a delay in applying for an Order. An urgent / imminent risk of harm will be necessary.
• There has been family violence or there is a risk of family violence by one of the parties.
  
  

OR

The application is made in circumstances of urgency;

One of the parties is unable to participate effectively in mediation, for example, because of an incapacity, because the other person is overseas or because the other person is unable to be located in order to invite them to participate in the mediation process;

If you are filing an Application Contravention in relation to an Order that is less than 12 months old and there are reasonable grounds to believe that the person who has contravened the Order has behaved in a way that shows a serious disregard for his or her obligations under the Order.

If you are intending to initiate Court proceedings without a Section 60I Certificate, you must also file an Affidavit of Non-Filing Dispute Resolution Certificate, or explain in your Affidavit the reasons you are claiming an exemption from participating in mediation first.

Once we receive your full instructions and requested documents our experienced lawyer can finalise your Consent Orders within 24 hours. The Orders are sent to the other side (your partner or their solicitor) for review and signing. Once the Orders are signed by both parties and the Orders are filed, the Court can take between 1 to 6 weeks (sometimes longer) depending on the Courts current workload.

• No.

Although it is always advisable to have any legally binding agreement reviewed by a lawyer, it is not essential and parties can enter into Consent Orders without obtaining legal advice.

The short answer is yes!

It is very common for the Court to requisition (reject) an Application that has not considered in the best interest of a child if seeking parenting Orders or for financial settlement Orders, an agreement that is not a fair and equitable division of the asset pool, having regard to the history of the relationship, each parties contributions and various other factors the Court is required to consider when making an Order.

The Court has wide powers when it comes to enforcing and Order, for example if the Court fines that either party has breach an Order without a reasonable excuse, the Court has the power to:

1. Change the existing Order, such as compensate a parent that may have missed out on time with a child or children.
   complete a parenting progress to assist the parent to focus on the needs of a child or the children.
   
   

In circumstances where a party shows a total disregard to the Orders, the Court can impose more severe penalties, for example:

1. Paying for the expense incurred by the other party because of the breach;
2. Paying all, or some of the other parties legal costs;
3. Community work;
4. Enter into a bond for up to two years;
5. Impose a fine; or
6. A term of imprisonment for up to 12 months.
   
   

It is important to remember that before you commence Court proceedings you must participate in Family Dispute Resolution, unless an exception applies.

If you have been accused of breaching an Order or you believe the other party has breached an Order book a FREE initial consultation to discuss your options.

A Consent Order can last in perpetuity, meaning that there is no end date and remains enforceable until such time as either party applies to the Court to have it set aside.

A Minute of Consent Order is a document that sets out the agreement between the parties, either parenting or financial, and is filed in the Court with an Application for Consent Orders for the Court when asking the Court to make a Final Order.

A Consent Order is an agreement between you and your former partner that has been approved by the Court and made into a legally binding Consent Order.

Consent Orders are made by the Court in circumstances where an agreement can be amicably reached between the parties.

A parenting plan is generally significantly cheaper and more cost effective than a Consent Order.

Unfortunately, the Court is not bound by the terms of a parenting plan and can make Orders that are significantly different when considering what is in the best interest of a child or children.