Family Court Consent Orders QLDÂ
Going through a separation or divorce is undoubtedly challenging, especially when children and property are involved. One effective way to manage these complexities is through a Family Court Consent Order. This guide breaks down what you need to know about consent orders, their benefits, and why you might want to consider one if you’re a parent or someone going through a divorce.
What is a consent order?
A consent order is a legally binding agreement that outlines the division of property or arrangements for children following a separation. It serves the same purpose as a court order but does not require you to go through the court process. Typically, a consent order is:Â
- Drafted by a Solicitor or Lawyer: Legal professionals usually draft consent orders to ensure all necessary elements are covered.
- Deals with Property Matters or Children/ Parental Responsibility: Consent orders can cover property division, child custody, and spousal maintenance.
- Signed by Both Parties: You and your ex-spouse must both agree to and sign the document.
- Reviewed and Approved by a Judge: The Family Court reviews the agreement to ensure it is fair and in the best interests of the children.
- Legally Enforceable: Once approved, the consent order becomes a legal document that both parties must adhere to.
Types of Consent Orders
There are two types of consent orders that can be made:
Property Consent Order
Sometimes referred to as a financial consent order, property consent orders outline how you and your ex-partner will divide your assets and liabilities, including property, savings, debts, and superannuation.
Parenting Consent Order
Parenting orders set out the arrangements for the care and welfare of children following a separation, such as living arrangements, visitation schedules, and financial support.
What is a Federal Court Consent Order?
A federal court consent order in Australia is a legally binding agreement approved by the court that formalises an arrangement between disputing parties. Here are the key points about federal court consent orders in Australia:
- Mutual Agreement: Consent orders are based on an agreement reached by both parties involved in a dispute. They agree on the terms without the need for a trial.
- Application Process: To apply for consent orders, the parties need to file an Application for Consent Orders with the court. This can be done any time after separation but should ideally be filed within 12 months of a divorce or two years after the end of a de facto relationship.
- Court Approval: The agreement must be reviewed and approved by the court. Once approved, it becomes a consent order, which has the same enforceability as any other court ruling.
- Legally Binding: Upon the court’s approval, the consent order is legally binding, meaning all parties are obliged to adhere to the terms outlined in the order.
- Avoidance of Court Hearing: One of the benefits of consent orders is that they can be made without the need for parties to appear in court, saving time and reducing the adversarial nature of disputes.
- Scope of Orders: Consent orders can cover various matters, including arrangements for children, division of property, and financial support. These orders ensure that the agreed-upon terms are legally enforceable.
- Enforcement and Compliance: If either party fails to comply with the terms of the consent order, they can be held in contempt of court, leading to legal consequences.
What is an interim consent order?
An interim consent order in Australia is a temporary court order agreed upon by both parties involved in a family law matter. These orders are designed to address urgent or immediate issues while waiting for a final resolution. Interim consent orders can cover various matters such as:
- Temporary custody arrangements for children
- Interim financial support or maintenance
- Compliance with certain conditions, like filing documents or undergoing assessments (e.g., drug testing)
- Arrangements for the use of property or other assets
To obtain an interim consent order, the parties must collectively agree on the terms and then submit this agreement to the court for approval. This process involves lodging an “Application for Consent Orders” along with any necessary affidavits or supporting documentation
Benefits of Consent Orders
No Court Appearance Needed
You can apply for a consent order without having to go to court, making the process less stressful and more convenient.
You Can Draft Consent Orders Yourself
While it’s recommended to seek legal advice, you have the option to draft a consent order yourself, which can save on legal fees.
Court Approval
The court will only approve consent orders if they are satisfied that the arrangements are just, equitable, and in the best interests of the child.
Comprehensive Documentation
A consent order allows you to document all your agreements — parenting, property, and spousal maintenance — in one legal document.
Legal Advice For Consent Orders
If you are seeking legal advice for matters relating to consent orders, there are a few things to keep in mind:
- Choose the right lawyer: Look for a family law professional who has experience with consent orders.
- Be transparent: Be honest and open with your lawyer about all financial matters and concerns.
- Understand the process: Make sure you understand what is involved in obtaining consent orders before embarking on the journey.
There are also other resources you can take advantage of before speaking to a lawyer. These include:
- The Family Relationship Advice Line:Â can provide you with information about the family law system/ Family Law Act in Australia.Â
- Women’s Legal Service: can give free legal advice to women on certain areas of the law, including domestic violence and family law.Â
Do we need to get a consent order?
While you are not required to get a consent order, there are several compelling reasons to consider one:
Stamp Duty Savings
You can save thousands of dollars on stamp duty when transferring ownership of land via a family court consent order.
Prevent Future Disputes
A legally binding consent order can help avoid future disputes that may arise from informal agreements.
Legal Backup
A consent order provides a legally binding document to fall back on in case of disagreements, ensuring both parties adhere to the agreed terms.
Asset Protection
Protect assets you develop post-separation from future claims by your ex-spouse. Without a consent order, informal agreements can break down over time due to new partners, friends, and family influences. A consent order ensures that what you agreed on is what you get.
Proposed Consent Orders Review by Family Court
The Family Court ensures that the agreement is just, equitable, and in the best interests of the children before making a consent order. They usually consider:
- Legal Advice: Did both parties seek legal advice before signing the agreement?
- Fairness: Is the proposed consent order fair to both parties?
- Practicality: Is the proposed consent order practical and enforceable?
- Finality: Does the consent order truly end all financial ties between the parties?
Usually, if a solicitor drafted the consent order and both parties took legal advice before signing, the consent order will be approved.
Do I have to go to Court to get a Consent Order?
In most cases, you will not have to go to Court. The Application for Consent Orders is an administrative purpose. If lawyers draft the consent orders, the orders seem fair and reasonable than it’s improbable you will need to make an appearance.
What is the main point of having consent orders?
They are enforceable, unlike a private agreement. If you need assistance enforcing a consent order, you have the Court to back you up. A consent order gives you legal rights and entitlements under the Family Law Act and related acts. They also act to protect you from further claims to your assets.
Varying a Consent Order
In certain circumstances, parties may need to vary family court consent orders after they have been approved by the court. Changes in financial circumstances, job relocations, or alterations in the needs of children can necessitate modifications to the original agreement. To vary a consent order, parties must mutually agree on the changes and submit a fresh application for approval by the Family Court.
Grounds for Varying a Consent Order
Common grounds for varying a consent order include:
- Significant Changes in Circumstances: This might involve a substantial increase or decrease in income, changes in health status, or other major life events.
- Best Interests of the Children: Alterations needed to ensure the well-being, safety, and best interests of the children involved.
- Mutual Agreement: Both parties agree on the necessity and specific terms of the variation.
Procedure for Varying a Consent Order
- Drafting the Variation: Parties, often with the assistance of solicitors, draft the modifications they wish to make to the original consent order.
- Filing the Application: Submit the variation to the Family Court along with documentation supporting the need for changes.
- Court Review: The court reviews the proposed variations to ensure they are fair, equitable, and in the best interests of the children.
- Approval and Enforcement: Once approved, the varied consent order holds the same legal enforceability as the original agreement.
Failing to attain mutual agreement or court approval for necessary changes might necessitate more formal legal proceedings. Therefore, open communication and a cooperative approach remain essential in the variation process.
What happens if I breach a consent order?
Breaching a consent order is equivalent to breaching a court order, which is a serious offence. It can result in legal penalties, including fines and imprisonment.
Is a consent order the end of my family law matters?
No, you will still have to comply with the order, i.e. transfer assets, sell houses and split super. A Consent Order will finalise your matter concerning the property settlement with your former spouse/partner and ensure that your ex does not come back in the future for another settlement.
Conclusion
Family Court Consent Orders are an invaluable tool for parents and those going through a divorce in Queensland, offering a legally binding way to manage the division of property and parenting arrangements. By understanding the benefits and processes involved, you can make informed decisions that protect your interests and provide peace of mind. If you’re considering a consent order, don’t hesitate to seek legal advice to ensure your agreement is fair, equitable, and in the best interests of your children. The peace of mind and protection a consent order offers are well worth the effort. For more information on how to draft and apply for a consent order, or to speak with a legal professional who can guide you through the process, contact us today.
