Consent Orders
Consent Orders are written agreements between parties that are approved by a Court. Once approved by the Court, these agreements become binding Court Orders. As such, they have the same legal effect as if they had been made by a judicial officer after a Court hearing.
Consent Orders are often preferable to parenting plans, in particular where there is a possibility that one party may fail to comply with the terms of the agreement. Not only will there be remedies available to the other party if the Orders are contravened, but the Orders will also act as an active deterrent against potential breaches.
Consent Orders can cover the following:
- Parenting – Including parental responsibility, living arrangements for children, time that children spend with each parent, communication between the children and each parent, and other matters relevant to the day to day care, welfare and development of the child.
- Property – Including the division of assets and liabilities, superannuation splitting, and de facto or spousal maintenance.
It is important to note that the Court will not automatically grant the making of any Orders which are filed. For Orders regarding parenting matters the Court will need to be satisfied that the Orders are in the best interests of the children. For property matters, the Court will need to be satisfied that the agreement is just and equitable prior to making the Orders.
It is important to note that if you have a set of Orders in place, the parties can mutually agree to changes to the arrangements by way of a Parenting Plan. However, if the parties cease to agree on the arrangements the original terms of the Orders will once again come into effect.
It is not unusual as children grow up for the Consent Orders to need to be amended to reflect the changing circumstances. If you are applying again by consent you will only need to demonstrate the changed orders are in the best interest of the child. If you can’t agree to the changes, then you will need to ensure you pass the Rice v Asplund threshold to ensure that the circumstances have changed significantly enough to warrant a change to the orders.
Some changes which have been successfully argued has been sufficiently significant include the following:
- A substantial period of time has elapsed since the Final Orders were made;
- There has been abuse of the child;
- A party has since remarried;
- The Court was not made aware of all relevant information at the time of making the original Order;
- The living situation of the parties has significantly changed; or
- A party is seeking to relocate with the child.
Whether Consent Orders are an appropriate resolution to family law matters will depend on the circumstances of each matter. Our experienced family lawyers are able to assist in determining whether Consent Orders are appropriate in your circumstances.
Our Team of Family Lawyers can guide you through the legal process of seeking a fair parenting arrangement and/or property settlement as quickly as possible.
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In some situations, through mediation, the parties involved in a separation can reach an agreement for the division of property and assets. Our Family Lawyers can assist you in formalising your agreement quickly and economically. Where a Property Settlement cannot be reached by negotiation with Family Solicitors, the Family Court Brisbane will need to determine an appropriate settlement after considering a number of key factors including:
- All assets and liabilities;
- The financial resources of each of the parties;
- The level of financial and non-financial contribution each party made to the property and the welfare of the family; and
- The future needs of the parties.
A mutual agreement can be formalized through a Financial Agreement or through Consent Orders in the Family Court.
Establishing the correct value of the properties, businesses and other assets is essential in determining the true present market value of the asset pool under consideration. Our Family Lawyers can advise you on the necessary approach to assist you in receiving a fair outcome.
What Agreement Is Necessary Before Consent Orders Can Be Filed?
The Family Court system encourage’s both parties to collaborate amicably and reduce the impact of the separation on your children. The team at A.L.F. Lawyers understand how stressful and confusing a Separation can be to you and your children.
The formalisation of an agreement between parents with respect to the children and their finances are the first step in this process.
Once the agreement is reached, you can elect to apply for Consent Orders to the Federal Circuit Court or the Family Court (depending on the complexity of your matter). Your agreement is stamped by the Court, turnint it into a binding order enforceable across Australia.
Why Should We Apply for A Consent Order?
Consent Orders once obtained are enforceable by the Court in the event that either party fails to fulfil their obligation’s in the Orders. When the terms of the Orders are breached, the aggrieved party has the right to apply to the Court to enforce the agreed terms of the Consent Order.
A Consent Orders may also provide you with an exemption to paying Transfer Duty on your home it is to be sold or transferred.
What Is The Role Of the Family Court?
A Registrar of the Family Court will review your Consent Orders administratively. This means you may not need to appear before the court.
The Registrar must be satisfied that the agreement is just and equitable and in the best interests of the children before they will approve your Consent Orders.
Are There Any Time Restrictions For Applying For A Consent Order?
Applications can be filed any time after separation but should to be filed within 12 months of a divorce or 2 years of the breakdown of a de facto relationship if parties wish to seek orders from the court. To file outside these timeframes, you will need to seek leave of the court.
