If you and your former partner can reach an agreement on property and parenting arrangements, then Consent Orders are a smart and cost-effective way to prepare for the future. But what is a Consent Order?
This legally binding document formalises an agreement made between two parties, giving you both peace of mind that its terms are enforceable. It can cover a litany of legal matters after de facto relationship or marital breakdown, from spousal maintenance to child care.
Below, we explain the concept and benefits of Consent Orders, the different types available and the time limits for applying so that you can fully understand your rights and responsibilities.
What is a Consent Order?
A Consent Order is a written parenting or property agreement that is then formalised and can be enforced by the Family Court. Rather than a judge making a decision about what arrangements should be made, you can draft your own terms before applying to the Family Court for approval.
You may apply for Consent Orders before or during court proceedings. Therefore, you may not need to endure an expensive and lengthy court process to finalise your agreement.
Before accepting your application, the Court will ensure its terms and conditions are just, equitable, reasonably practical and, for Parenting Orders, in the best interests of the children.
As soon as a Consent Order is issued, it is legally enforceable. In other words, the Court may impose a penalty if you fail to follow its terms.
What is a Minute of Consent?
A Minute of Consent is a document outlining the proposed Consent Orders, which is submitted along with an Application for Consent Orders for the Court’s approval. Typically, a family lawyer drafts these Consent Orders on your behalf.
This document is important, as an Application for Consent Orders involves various considerations depending on the family law issue being addressed.
For example, if the Consent Orders involve parenting arrangements, the Court must ensure that the Orders serve the best interests of the child. If the Consent Orders pertain to financial arrangements or property settlements, the Court needs to determine that the Orders are fair and equitable for both parties involved.
This detailed examination ensures that the Orders, once sanctioned, meet legal standards and address the well-being and fairness necessary in Family Law matters.
Parenting Orders
Parenting Orders are Consent Orders that cover parenting arrangements, such as:
- Where the child lives and with whom;
- Who the child will spend holidays and special occasions with;
- How much time the child will spend with the parent they are not living with and other relatives;
- Communication with the child outside of the above time;
- Childcare and education;
- Child welfare and development;
- Parental responsibility for the child; and
- Dispute resolution procedures.
Importantly, Consent Orders can be customised to include varying levels of detail based on your needs. Some parents opt for a highly detailed Consent Order to have a clear understanding of their obligations and duties, whereas others might choose a more flexible arrangement.
As the name suggests, Parenting Orders are generally made between the child’s parents. However, grandparents and other relatives may also apply in certain circumstances.
Note that even if both parties agree on the proposed Orders, the court will only approve the Consent Orders if it is convinced that the Orders serve the best interests of the child.
Before meeting with your lawyer to discuss a parenting order, gather comprehensive details on the following aspects:
- Past and current parenting arrangements.
- Your child’s living arrangements and the distance between your home and your former partner’s home.
- Your child’s health, particularly any ongoing medical treatments.
- The school your child attends and their current grade levels.
- The financial support required for the child, both current and anticipated.
- Any risks to the child, including previous incidents of family violence, alcohol or drug misuse, or parental health issues.
Bear in mind that while financial support is relevant in applications for parenting consent orders, the Family Court is not authorised to issue Consent Orders concerning child support.
For more information on your rights and responsibilities, please read the Family Court of Australia’s factsheet ‘Parenting Orders – obligations, consequences and who can help’ and consult Sections 60B, 60CA, 60CC, 61CA, 61DAA, 61DAB, 67Z and 67ZBA of the Family Law Act 1975.
Property Orders
Property Orders deal with financial issues, outlining how assets and liabilities will be allocated between you and your former partner.
These orders are ideal for parties seeking a personalised division of their assets. Formalising your agreement with a Consent Order can also help reduce legal expenses. Moreover, a Consent Order protects you from any future financial claims made by your former partner after the divorce is finalised.
Consent Orders concerning property and financial matters may include:
- Sharing assets and liabilities (Sections 75 and 79 and Part VIIIB of the Family Law Act;
- Spousal or de facto maintenance (Sections 72, 74 and 75 of the Family Law Act); and
- Superannuation splits.
There are considerable benefits to formalising a property or financial agreement through Consent Orders, such as:
- Limited situations in which Orders can be overturned;
- Nominal stamp duty on property transfers*; and
- Capital Gains Tax rollover relief.
Note that de facto couples who plan to file for Consent Orders must meet the criteria detailed in sections 90SB, 90SD, 90SE and 90SF of the Family Law Act.
*In Property settlements, parties to a relationship are able to transfer or refinance the other party’s share in real property with only nominal stamp duty payable if sealed Consent Order documents are provided to the Office of State Revenue WA.
If you try to do this by way of informal agreement, you may not have the benefit of such an exemption and may leave yourself open to a potential claim from the other party in to the future.
Visit the Australian Taxation Office website to learn more about stamp duty and capital gains tax relief.
Do we need Consent Orders?
The role of a Consent Order is to create a record of an agreement between parties and ensure its terms are legally binding.
Although you are not legally obliged to file for Consent Orders following separation, they are a popular choice for many former partners because they provide legal protection whilst allowing both parties to have their say in the arrangement.
A Consent Order enables you to structure terms and resolve matters without the expense, time and stress of court proceedings. With only an informal parenting or property agreement in place, you must rely on the word and integrity of the other party – a recipe for future disputes and potential legal action.
Applying for Consent Orders
Before applying for Consent Orders, it is crucial to seek legal advice from a reputable family law firm and hire a family lawyer.
A knowledgeable family lawyer will explain your legal rights and guide you through the relevant sections of the Family Law Act that apply to your situation, whether they involve parenting Orders or property matters.
They can help you reach an informal agreement with your ex-partner and advise on how to effectively draft the Consent Orders.
When submitting an application for Consent Orders, the court requires three documents:
Application Form: This form provides the court with details about each party’s current financial situation or parenting arrangement, along with all necessary information for the court to determine if the proposed agreement is fair in property matters or in the child’s best interest in a parenting Consent Order.
Proposed Orders: These Orders outline the agreement reached between the parties, essentially requesting the court to make these Orders official.
Notices: This document addresses issues of child abuse, family violence, or risk for parents seeking a parenting Consent Order.
For reliable and proactive support throughout this legal process, contact our family lawyers today.
Can I apply for Consent Orders without a lawyer?
Yes, you can apply for Consent Orders without a lawyer. However, it is not recommended.
This process demands gathering substantial information and completing various complex legal documents. This often results in requisitions, potentially increasing costs compared to having a lawyer prepare the application from the outset.
With the gravity of the matters at hand, it is advisable to seek independent legal advice regarding the Orders you are agreeing to.
At an absolute minimum, you should engage an experienced family lawyer to:
- Review your proposed Orders and application documents to ensure they satisfy the Court’s criteria; and
- Confirm that your Orders are drafted correctly to be enforceable.
Time limits for Consent Order applications
You can apply for Consent Orders before, during or at the end of a court matter, provided it is filed within 12 months of divorce or 2 years of de facto relationship breakdown.
If you miss this deadline, you must seek leave of the Court to file an application. This request can be made as the first Order in your application. Note that the Court may also require additional evidence if you were in a de facto relationship.
And how long do Consent Orders take once filed? This process typically takes one and a half to two months depending on the circumstances.
Can the Court deny a Consent Order application?
Yes. The Court can refuse your application for Consent Orders if it deems the Orders are not in the child’s best interests or are unfair to either party.
This determination is made while reviewing your application, even if both parties have agreed to the terms outlined in the draft Orders.
What happens after a Consent Order is sealed by a judge?
Once a Consent Order is sealed by a judge, it is final and legally binding. Therefore, both parties must abide by its terms.
If a party fails to comply with this agreement, the other party can file a contravention/enforcement application with the Court. If this application is approved, the Judicial Officer may enforce the terms or impose penalties for the breach.
If you believe your ex-partner has violated the terms of a Consent Order, it is strongly advised to seek legal advice before filing a contravention application to ensure it is the most suitable step for your situation.
How long does a Consent Order last?
A Consent Order remains effective indefinitely once approved and issued by the Court. It will continue to be valid unless one party successfully applies to have it updated or set aside.
Updating or canceling a Consent Order
One of the main objectives of making Consent Orders is to resolve and prevent disputes for good so that no further proceedings are required. As a result, it can be challenging to change or set aside existing Orders.
- To do this, you must provide evidence of:
- Fraud or dishonesty by the other party;
- Unconscionable or unfair behaviour by the other party;
- The other party’s failure to comply with the terms;
- Impractical terms and conditions;
- A significant change in childcare or welfare; and
- The government seizing property gained through illegal activity.
How much does an application for Consent Orders cost?
The court filing fee for a Consent Orders application changes every year. In 2024, it costs $195. You may be able to claim an exemption from this fee if you have a concession card.
Get personalised support with Consent Orders in WA
Now that you know what a Consent Order is, you’re ready to take the next step.
We strongly recommend seeking legal advice before reaching an agreement and applying for Consent Orders. Your solicitor will equip you with the legal knowledge and experience required to ensure that the Order is structured to protect you and your children’s best interests.
At Affinitas Legal in Perth, our trusted family lawyers are here to guide you through the legal complexities of Consent Orders. Please get in touch with our team for tailored support.
