Understanding Consent Orders and Their Importance.
Navigating financial and parenting arrangements after a separation can be overwhelming. While many couples prefer to settle matters amicably, informal agreements, whether verbal or written, lack legal enforceability. This means that if disputes arise in the future, one party may be left unprotected and without legal recourse.
To ensure that agreements are legally binding and enforceable, many individuals turn to Consent Orders. These are court-approved agreements issued by the Federal Circuit and Family Court of Australia (FCFCOA), covering parenting arrangements and property settlements. By formalizing arrangements through Consent Orders, both parties gain certainty and legal protection without the need for contested court proceedings.
This article will explore the legal framework governing Consent Orders, the application process, and the significance of court-enforced agreements in family law.
What Are Consent Orders?
A Consent Order is a legally binding court order that formalizes agreements between separated or divorced parties regarding parenting arrangements, financial matters, and property settlements. These agreements help ensure that both parties adhere to the mutually agreed-upon terms, offering legal protection, certainty, and enforceability.
Consent Orders are particularly beneficial because they allow parties to avoid lengthy and costly court battles while still securing a court-approved, enforceable resolution. By obtaining a Consent Order, individuals can protect their financial interests and parenting rights without resorting to contested litigation.
Why Are Consent Orders Important?
Without a formalized Consent Order, informal agreements, whether written or verbal, do not carry legal weight and may not be enforceable in court. This means that if one party fails to uphold their end of the agreement, the other may have limited legal recourse. A Consent Order eliminates this uncertainty, ensuring that the agreed-upon terms can be legally enforced.
Additionally, Consent Orders provide finality and security, preventing future disputes. Once a property settlement is finalized through a Consent Order, neither party can make further claims on each other’s assets, income, or superannuation.
Types of Consent Orders.
Consent Orders in Australia generally fall into two main categories:
1. Parenting Consent Orders.
Parenting Consent Orders are legally binding agreements that establish the care, welfare, and living arrangements for children after a separation or divorce. These orders cover:
● Where the child will live (primary residence arrangements).
● Time spent with each parent (custody and visitation schedules).
● Parental responsibilities, including decision-making regarding education, healthcare, and religion.
● Holiday and travel arrangements (both interstate and international).
● Communication methods, such as phone or video calls, when the child is not with one parent.
The Federal Circuit and Family Court of Australia (FCFCOA) approves these orders, ensuring they serve the best interests of the child, as required by Section 60CC of the Family Law Act 1975 (Cth). Once issued, Parenting Consent Orders must be followed, and breaches can result in legal consequences, including penalties or modifications to custody arrangements.
2. Property Settlement Consent Orders.
Property Settlement Consent Orders govern the division of assets, liabilities, and financial resources between separated or divorced parties. These orders ensure that financial settlements are legally binding and final, covering:
● Real estate (family home, investment properties, land).
● Financial assets (bank accounts, shares, superannuation).
● Debts and liabilities (mortgages, credit card debts, loans).
● Vehicles and personal assets (cars, furniture, jewelry).
● Business interests and investments.
A Consent Order prevents either party from making future financial claims, ensuring that all property matters are settled in a fair and equitable manner. Under Section 79 of the Family Law Act 1975 (Cth), the court must be satisfied that the settlement is just and equitable before approving the order.
The Legal Weight of Consent Orders.
Once the FCFCOA approves a Consent Order, it has the same legal standing as a court-imposed judgment. This means that if one party fails to comply with the agreed terms, the other party can apply for court enforcement.
Potential enforcement actions include:
● Financial penalties for failing to meet financial obligations.
● Orders for the sale or transfer of assets if a party refuses to comply.
● Legal consequences for breaches of parenting orders, including changes to custody arrangements.
In cases where a party does not comply with Parenting Consent Orders, the court can issue contravention orders under Section 70NAC of the Family Law Act, which may result in penalties, make-up time for the other parent, or even changes in custody arrangements.
Can a Consent Order Be Changed?
Generally, Consent Orders are final and binding. However, under Section 90KA of the Family Law Act 1975 (Cth), they can only be overturned in limited circumstances, such as:
● Fraud or misrepresentation (one party hid assets or provided false financial disclosure).
● Significant changes in circumstances, particularly in parenting matters (e.g., a parent relocates, impacting custody arrangements).
● Duress or undue influence, meaning one party was pressured into signing the agreement.
If a party wishes to modify a Consent Order, they must either:
- Obtain mutual agreement from the other party and submit a new Consent Order to the court.
- Apply to the FCFCOA for a variation, proving that there has been a significant change in circumstances
Legal Framework Governing Consent Orders.
The Family Law Act 1975 (Cth) establishes the legal foundation for Consent Orders in Australia. Key provisions include:
● Parenting Orders (Section 65D(2)) – Courts can approve parenting arrangements by consent, provided they align with the best interests of the child (Section 60CC).
● Property Orders (Section 79) – Financial and property settlements must be “just and equitable” for all parties involved.
● Binding Agreements (Section 90KA) – Legally recognized agreements, including Consent Orders, must be upheld unless proven to have been influenced by fraud, mistake, or coercion.
Additionally, the Family Law Rules 2004 (Cth) outline procedural requirements for Consent Order applications, with Rule 10.15 mandating the submission of Form 11 and supporting documents for court approval.
Steps to Obtain Consent Orders.
1. Negotiating and Drafting an Agreement.
● Both parties must reach a mutual agreement on parenting arrangements or property division.
● Seeking legal advice ensures that the agreement is clear, fair, and legally sound.
2. Preparing and Submitting the Application.
● The parties must complete Form 11 (Application for Consent Orders) and submit it to the FCFCOA, along with:
○ A written record of the agreed terms.
○ Financial statements for property settlement cases.
○ A detailed parenting plan (if applicable).
3. Court Review and Approval.
● The court assesses the application to ensure:
○ Parenting orders serve the child’s best interests.
○ Property division is fair and equitable.
○ Neither party has been coerced or disadvantaged.
● If the agreement meets legal standards, the court grants legally enforceable Consent Orders.
Financial Considerations in Consent Orders.
A properly structured Consent Order provides financial security by:
● Clearly defining how assets, superannuation, and debts will be divided.
● Preventing future financial claims between parties.
● Ensuring compliance with agreed financial obligations.
Without a legally binding order, one party may later seek additional financial contributions, potentially leading to further court proceedings.
Full Financial Disclosure Is Crucial.
Transparency is essential when applying for property settlement Consent Orders. Both parties must fully disclose:
● Bank accounts, investments, and shares.
● Property and real estate holdings.
● Liabilities, including loans and debts.
● Superannuation entitlements.
Failing to disclose assets can have serious legal consequences. In Black & Black (2008) FamCAFC 7, the court overturned a financial settlement after discovering that one party had concealed assets.
Enforcing Consent Orders: Real-World Scenarios.
1. Non-Compliance with Property Orders.
● Example: One party refuses to transfer a jointly owned property or asset as agreed.
● Legal Action: The affected party can seek a court enforcement order, compelling compliance or imposing financial penalties.
2. Breaching Parenting Consent Orders.
● Example: A parent repeatedly denies the other parent access to their child.
● Legal Action: The affected parent can apply for enforcement under Section 70NAC of the Family Law Act 1975, which may lead to penalties, additional parenting time, or even custody modifications.
Why Seeking Legal Advice Is Essential.
Although Consent Orders offer legal protection, improperly drafted agreements can lead to future complications. Engaging a family lawyer ensures that:
● Your rights and interests are protected.
● The agreement meets all legal standards.
● The risk of future disputes is minimized.
By formalizing agreements through Consent Orders, separating couples can secure a legally sound arrangement, ensuring financial stability and certainty in parenting matters.
