If you and your former partner are able to reach an agreement about parenting arrangements or how the matrimonial assets are to be divided, you can formalise this agreement by way of family law Consent Orders. Consent Orders are a written agreement between the parties, which is filed in court and upon approval, becomes a legally binding Court Order.
What are Consent Orders?
Generally, the family law Consent Orders that can be made fall within two categories:
This includes orders about how decisions are to be made for the child, who the child lives with, when the child spends time with each parent, and how a parent can communicate with the child while the child is in the other parent’s care.
This includes orders about how the matrimonial property is to be divided, including spousal maintenance, superannuation splits or organising lump sum payments or the sale of the matrimonial home.
You are able to seek parenting or property orders on their own, or, you are able to seek both parenting and property orders in the same application.
What is the process for obtaining family law Consent Orders?
The process for obtaining family law Consent Orders is relatively straight forward. It is also more time and cost effective than other methods of resolving a family law dispute as it is a purely administrative process, and you are not required to appear before the court.
There are three steps to the process.
This involves discussions with the other party in order to reach an agreement. This can be done through the parties themselves, or, through their respective lawyers. The negotiation stage can involve tactical considerations and compromises, so it is helpful to seek the assistance of a lawyer who will be able to provide you with comprehensive advice in relation to your rights and entitlements when seeking to negotiate.
This involves the preparation of the necessary documents that must be filed with the Court. When seeking either parenting or property orders, you will be required to file:
1.An Application for family law Consent Orders
This application briefly sets out details in respect of each party and the child/ren, a statement of assets, liabilities and financial resources of each party, and, outlines the consequences of the family law Consent Orders that you are seeking.
2. The Consent Orders
This is a document that reflects the agreement of the parties and outlines how to put that agreement into action (i.e. who is to do what and the time frames for doing so). It is important that the orders are drafted properly and in a way that allows the Court to enforce them. If orders are not drafted properly, further problems may arise in the future. Therefore, if you are unfamiliar with what is required, it is crucial that you seek the assistance of a lawyer when drafting these orders.
3. Annexure to proposed family law Consent Orders
If you are seeking parenting orders, you will also be required an Annexure to Proposed Consent Parenting Order, which outlines whether there is any risk of family violence, abuse or neglect to the child/ren.
4. Notice to third parties
If you are seeking property orders, sometimes it is necessary to provide notice to third parties prior to filing. For example, when you are seeking a superannuation split, the Trustee of the Superannuation Fund must provide a letter confirming that they will comply with the Orders that are being sought and this letter must be provided to the court at the time of filing.
This involves lodging the Consent Orders and supporting documents in court. You will need to file the original and three copies of each document.
Benefits of Consent Orders
There are a number of benefits of formalising an agreement by way of family law Consent Orders. These benefits include:
- Once Orders are made, they are final. Unless the parties agree, it is extraordinarily difficult to vary an Order once made.
- Once Orders are made, they are enforceable. The court can enforce orders through a number of means, including signing documents on behalf of a party who refuses to do so. If more substantial action is required to enforce an Order, than an application for further orders can be made to the court to assist with compliance.
- In respect of property matters, any transfer of property (including the matrimonial home) is exempt from payment of stamp duty if it is transferred to a party or child of the relationship.
Restrictions on filing family law consent orders
Time limits do not apply to an Application for Consent Orders seeking parenting orders, and this application can be filed at any point after the parties have separated. However, time limits do apply to the filing of an Application for Consent Orders seeking property orders.
In respect of married couples, this time limit is triggered by the granting of a divorce. Once a divorce is granted, an Application for Consent Orders must be filed within 12 months. In respect of de-facto couples, this time limit is triggered by the breakdown of the relationship. Once de-facto partners separate, they have two years to file an Application for Consent Orders seeking property orders.
If you do not file within these time periods, you will be required to seek the leave (i.e. permission) of the Court and this is not always granted.
When filing your Application for Consent Orders, there is a filing fee that must be paid. The current fee is $165.00.
You may be eligible for an exemption from this fee, provided you can supply the court with documentary evidence to support your reasoning. Examples of when you may be eligible for exemption include:
- You hold a health care card, pensioner concession card, commonwealth seniors’ card or any other card issued by the Department of Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions;
- You have been granted Legal Aid;
- You are the recipient of youth allowance, Austudy or Abstudy payments;
- You are under the age of eighteen;
- Your income, living expenses, liabilities and assets are at such a level that payment of the full fee would cause you financial hardship.
For more information on whether you are eligible, see Guidelines for Exemption of Court Fees on the Family Court of Australia website.
Seeking legal advice
When seeking to finalise your family law dispute by way of Consent Orders, it is important to obtain independent legal advice in relation to your situation. A lawyer will be able to explain your legal rights and entitlements under the Family Law Act 1975 (Cth) and how the law applies to your case.
If you require assistance with bringing an Application for family law Consent Orders or with any other legal matter, please contact Go To Court Lawyers.
By Taylor McAnderson, Solicitor