Application for Consent Orders

15th March 2019

Posted in: News

What is a consent order?

Put simply, a consent order is a written agreement that is approved by a court.

If both parties have agreed upon a parenting, financial and or property arrangement and want to make it legally binding, they can do so by applying for a consent order through the Family Court of Australia.

When the consent order is made, it has the same power as a court order made by a judicial officer after a court hearing.

Consent orders can also be used to discharge or alter existing family law orders.

According to the Family Law Act 1975, the courts must ensure that the consent orders are appropriate, with property orders being both equitable and just, as well as parenting orders being in the best interests of the child involved.

What are the benefits of having a consent order?  

Applying for consent orders will enable you to keep a well-documented, binding and enforceable record of your agreement.

Having a consent order means that you do not have to go through the court process and can resolve your dispute without incurring the costs of lengthy court proceedings.

Having a consent order is also a great way to avoid family breakdowns and the legal costs associated with future problems such as changing parenting, property or financial circumstances.

Reaching an agreement and choosing to keep the arrangement informal (e.g. no consent order) can pose a huge risk to all parties involved.

If you can reach an agreement, make sure to put it in writing and get it validated by the Court.

This way there will never be a misunderstanding and both parties can rest assured knowing that if circumstances change in the future, they will be legally protected by this agreement.

What are the different types of orders?

  1. Parenting orders by consent

This type of consent order involves parenting arrangements such as:

  • What parent the child lives with and if there are any shared arrangements.
  • The time a child will spend with either the parent, grandparent or anyone else that is an integral part of their life. These scheduled arrangements may include face-to-face interactions, phone calls, emails and, or letters.
  • Other parenting responsibilities such as day-to-day care, the development and welfare of the child (eg education, sports and religion).

Even though you may both agree upon the orders sought, there is still a chance that the courts will not approve the consent orders if they are not in the best interests of the child [Family Law Act 1975 s 60CA].

Courts must presume that “equal parental responsibility” is in the best interests of the child. Shared parental responsibility means that both parents are responsible for the major long-term decisions for their child, including their schooling, religion and health. If you wish to pursue an ‘unequal’ shared parental responsibility, you must be able to prove to the courts that the agreement you have made is in the best interests of the child.

The courts must also decide whether the arrangements of time spent with the child are reasonably practicable. They may require further documentation if it is unclear whether the arrangement is reasonably practicable or not.

  1. Property orders by consent

This type of consent order involves financial and property orders that may deal with:

  • Transfer or sale of your financial resources, property and liabilities
  • De facto and spousal arrangements
  • Splitting of superannuation

There are many advantages to reaching an agreement with the other party and formalising your property and financial arrangement with consent orders. Using consent orders will allow you to make your own decisions, as well as reduce financial and emotional costs of legal proceedings. Fortunately, there are also limited circumstances in which consent orders can be set aside, which means you will be legally protected by the agreement made.

Time Limit on filing financial and property consent orders

It is important to note that you must file your consent orders within 12 months of a divorce, or within 2 years of the breakdown of a de facto relationship.

You must seek leave to file the application outside of these time periods. Leave can be requested as one of the orders in your application. If you were in a de facto relationship, you may be required to provide further evidence.

How do I apply for consent orders?

To apply for consent orders, you will need:

  • An application for Consent Orders – (do-it-yourself kit) This kit provides you with all the information you need to know about consent orders and how to apply.
  • Application for Consent Orders- Proposed Orders Template – this template is made up of the four forms you will need to create your consent orders. These forms need to compiled into the document which receives the court stamp on them. These forms include:
  1. Cover Sheet for the Consent Orders
  2. First page of the Consent Orders
  3. Format of Consent Orders – In this form, you will write the details of the orders you are seeking based upon the agreement you have made with your ex-partner. Each order must be numbered and paragraphed separately.
  4. Certification of Consent Orders – This form is signed by each parent.
  • Annexure to Proposed Consent Parenting Order – A separate Annexure must be made by each person who is creating a consent orders application.

Where do I find these documents and forms?

The Family Court of Australia registry can provide you with the documents listed above. You can download them yourself on the Family Court of Australia’s website and fill the forms out electronically.

What to do when I have all the forms and documents?

  1. Complete the Application for consent orders
  2. Prepare your draft consent order
  3. Prepare copies of relevant documents and orders
  4. Sign all documents and forms
  5. File all the documents and forms

Note: Parenting and Property/Financial orders can be sought in the same application.

At CSD Law, we can take the hassle out of drafting and lodging your consent order application and can guide you through every step of the process.

If you need further advice or information about your consent order application, contact the team at CSD Law on 1300 383 486 or email us at info@csdlaw.com.au.