What is a consent order in family law? Here’s all the legal facts

Often clients ask how they can finalise an agreement without going to court now that they are separated from their ex-partner.

By Lucia Guo, Associate at Australian Family Lawyers, Sydney.

If you want a cost-effective solution to both financial and parenting issues arising from the separation, then a Consent Order might be the answer to what you are looking for. 

What are consent orders?

As the name implies, consent orders are the orders made by the Federal Circuit and Family Court of Australia (Family Court) by the consent of you and your ex-partner. These orders have the same effect as the orders that other people obtain after fighting against their ex-partners for years in court.

Consent order applications

There are three documents required by the court when you lodge the application for consent orders:

Application form 

This form is used to inform the court about each party’s current financial situation/parenting arrangement as well as all the relevant information that the court needs to be aware of to assess if the parties’ proposed agreement is “just and equitable” in property matters and/or in a child’s best interest in a parenting consent order.

Proposed orders 

This is a set of orders reflecting the agreement reached between the parties. Essentially, the nature of the application for the consent order is to ask the court to make these orders as per your wish

Notices

This is a notice of child abuse, family violence or risk for parents seeking a parenting consent order. 

Advantages of consent orders

1. The application for consent orders can deal with both financial and parenting matters either simultaneously or as separate applications at different times.
2. It is not a mandatory requirement for each party to be legally represented. Often only one party retains a lawyer who prepares the consent order documents. However, entering into a consent order is a serious step, and we strongly recommend that both parties get legal advice from a family law solicitor. 
3. They are cost-effective.
4. For property matters – once orders are made, they are difficult to be set aside as the grounds to do so under the Family Law Act are limited if both parties do not agree to do so.
5. For parenting orders – they can only be set aside if the grounds for doing so are satisfied or both parents to agree.

Key factors to consider for property consent orders

If you can reach an agreement with your ex-partner and thinking about retaining a lawyer about a consent order, here are some factors for you to consider and inform your lawyer about:

1. How were the assets paid for – such as direct financial contributions such as:
   • payment for the deposit;
   • stamp duty or renovations of the properties purchased during the relationship; 
   • if family members paid – was this a loan or a gift? Was it a gift to one or both of you?
2. Indirect financial contributions such as unpaid work for renovation or construct properties in your or your ex-partner’s name; Often, family members help renovate too.
3. Any inheritance or assistance received from either your parents or your ex-partner’s parents.
4. Non-financial contributions towards the welfare of the family, including domestic duties and care of the children and whether this was shared equally or one did more. If there are stepchildren – did their parent pay child support? What care did the step-parent provide?
5. Future needs factors such as health, age and earning capacity of the parties. Points of consideration include family trusts, including any interest in any testamentary trust.

Key factors to consider for parenting consent orders

In preparing to meet your lawyer for a parenting order, have details ready about:

1. The history of the parenting arrangement;
2. The accommodation for the children and the relative distance between your residence and your ex-partner’s residence;
3. The health of the children, including any ongoing medical treatment required;
4. The education of the children including which school the children attend and what year they are in; 
5. The financial support for the children – both now and in the future; 
6. Any risk to the children or past incident relating to family violence; and
7. Any risks by a parent such as misuse of alcohol/drugs or health issues.

Please note that while financial support is a relevant consideration in the application for parenting consent orders, the Family Court cannot make a consent order regarding child support.

Timeframe and time limits

While there is no standard process time (as it really depends on the volume of the matters in the list of each registry), usually it takes 6 to 8 weeks before a Registrar of the Family Court to review your application for consent orders. If the registrar is satisfied that the property orders sought by the parties are just and equitable, the registrar will make the orders as per proposed orders prepared by your lawyer. 

If the registrar requires further information in making that determination, they then will issue a requisition which is a written request for information to be provided in the form and time frame as requested. Parties must comply with the requisition for the registrar to reconsider and approve of the making of the consent orders. 

You can lodge the application for consent orders for both parenting and property matters as soon as you have separated on a final basis from your ex-partner, even before you make the application for divorce. 

However, if the divorce order has been made, then you have:

• 12 months to reach an agreement with your ex-partner if you are married; or 
• 24 months if you are in a de facto relationship in relation to the financial disputes and file property consent orders. 

If this applies to you, the court will permit you to have a consent order made provided the consent orders include and an order for the application for consent orders to be made out of time.

Learn more about time limits in family law here.

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