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Key Relevant Legislative Instruments
What Are Consent Orders?
Consent orders are legally binding agreements approved by the Court, designed to formalise arrangements between parties regarding parenting, finances, property, and maintenance.
If both parties have reached an agreement and wish to make it enforceable, they can apply to the Federal Circuit And Family Court of Australia (‘FCFCOA’) for consent orders. After consent orders are approved and become a Court order, they must be followed. (Violating these orders can lead to enforcement actions by the Court, which may include penalties such as paying the other party's legal costs, enter into a bond, pay a fine, or imprisonment. (See Division 13A of the Family Law Act 1975 and Division 11.2.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021).
These orders can also be used to change or cancel existing family law orders, ensuring that the agreements reflect current circumstances.
Consent Orders in relation to children may also be varied by entering into a mutually agreed parenting plan, unless the Consent Orders prohibit doing so. However, Consent Orders concerning finances and property can be changed only in very limited circumstances (pursusant to section 79A or 90SN of the Family Law Act).
The same application can be used to seek consent order for children, financial, and propertly related matters.
Financial Benefits of Consent Orders
Consent orders can save you money in two main ways:
Stamp Duty: Property transfers under a court order are usually exempt from stamp duty, and some areas offer a waiver if you buy a new property after selling your share of the matrimonial home.
In Victoria, you will not need to pay stamp duty on vehicle transfers between parties if done through a Consent Order under the Family Law Act 1975. (However, rules regarding transfers of company assets are different).
Capital Gains Tax: Asset transfers through consent orders typically avoid capital gains tax.
These benefits apply when agreements are made through consent orders or financial agreements. If the court decides on the property settlement, it will determine if capital gains tax should apply.
Will You Have to Attend the Court Hearing For Consent Order Proceedings?
Usually the parties are not required to attend a hearing for consent orders.
Consent orders are a great way to handle disputes with less stress and lower costs. Getting consent orders is a relatively inexpensive and hassle-free process because they are obtained with the parties' cooperation. Consent orders lead to more friendly solutions, can be tailored to fit your needs, and usually result in better compliance and fewer problems later on.
How Much Lawyers Charge for Drafting Consent Orders?
Unfortunately, there is no simple answer to this question. The fee lawyers charge to help draft consent orders depends upon each matter's complexity and the time needed to complete the task. However, you can expect to pay between AUD 2000 – 5000 in legal fees for consent orders for a matter that is not overly complex or lengthy.
Be mindful of other potential costs and disbursements (such as $200 in court fees, photocopying, etc.).
In some instances, you can apply to have the court fees waived altogether. Please refer to FCFCOA’s Guidelines for exemption of court fees (Family Law).
Who Pays the Costs of Consent Orders?
Usually, the party applying to the court for consent orders bears the costs of consent orders. However, the parties can agree to share the costs if they wish.
Court Considerations
When you apply for consent orders, the Court evaluates whether the proposed parenting orders are in the best interests of the children and whether the financial or property orders are just and equitable. Understanding the impact of the orders you seek and how they will be enforced is essential.
Timing and Deadlines – Financial Matters
You can file an application for Consent Orders for financial matters before or after separation.
However, it’s crucial to file Consent (Financial) Orders within 12 months of a divorce or within two years of ending a de facto relationship. If you miss these deadlines, you must seek the Court’s leave to file your application, which may require additional justification and could complicate the process.
Understanding the Consent Orders
Understanding the implications of the orders you are seeking is critical. Even if you apply for consent orders without a lawyer’s assistance, obtaining independent legal advice can help you comprehend the potential consequences. This is particularly important for complex issues like property division, maintenance, and parenting arrangements.
Relevant Sections of the Family Law Act
To ensure that you understand the legal implications of the consent orders you are seeking and that your application aligns with legal requirements, the importance of reviewing the relevant sections of the Family Law Act 1975 cannot be overstated:
Parenting Orders: Review sections 60B, 60CA, 60CC, 61CA, 61D (3), 61DAA, 61DAB, 64(B)(3), 67Z, and 67ZBA. These cover the child’s welfare, best interests, and parental responsibility.
[Note that, since 6th May 2024, the presumption of "equal shared parental responsibility" no longer exists under the Family Law Act (after the repeal of section 61DA). The presumption related to the joint making of major long-term decisions but was often misinterpreted as a right to equal time arrangements].
Reconsideration of Final Orders: New section 65DAAA outlines the conditions under which a court may revisit a final parenting order, incorporating the common law principle from Rice v Asplund (1979). According to this section, a final parenting order can only be reconsidered if:
The court has determined that there has been a significant change in circumstances since the order was issued; and
The court believes that revisiting the order is in the best interests of the child.
Financial Orders for Married (or Formerly Married) Applicants: Review sections 75, 79, and Part VIIIB. These address property division, spousal maintenance, and superannuation.
De Facto Relationships: Review sections 90SK, 90SL, 90SM, and Part VIIIAB for issues related to property and maintenance in de facto relationships.
Third-Party Orders: Refer to Part VIIIAA and section 90TA for orders affecting third parties.
Maintenance Orders: Review sections 72, 74, and 75 for spousal maintenance, and sections 90SB, 90SD, 90SE, and 90SF for de facto partner maintenance.
Time Limit Extensions: Review section 44 if filing after the standard time limits. You’ll need to either consent to the proposed orders or seek leave from the Court.
You must also be aware of the applicable rules and regulations in the Family Law Rules (2021) and the relevant court’s Practice Directions.
Drafting Your Consent Orders
When setting out your orders for children, finances, property, or maintenance, ensure that each order is clearly defined. Separate each order into individually numbered paragraphs and ensure all parties sign and date each page.
Consent orders will only be granted if considered fair, ‘just and equitable’.
If the Court does not approve the Consent Orders application, it may or may not provide reasons for its decision. Therefore, it is strongly recommended that you consult with a lawyer to seek legal advice on your proposed minute of consent orders if the court does not provide you reasons for its decision not to approve your proposed consent orders.
Parenting Orders
Parenting orders can include decisions on:
Living Arrangements: Who the child lives with, spends time with, etc.
Visitation Times: When and how a child spends time with a parent they don’t live with or with other important figures like grandparents. This can include in-person visits, calls, emails, or letters.
Child Maintenance: Financial support for children not covered by the Child Support (Assessment) Act 1989.
Parental Responsibility: Who makes decisions about significant and long-term issues such as names, education, health care, religion, cultural upbringing, and extracurricular activities.
Financial Consent Orders
Financial orders may cover:
Spouse Maintenance: Financial support for a current or former spouse.
De Facto Partner Maintenance: Support for a partner from a de facto relationship that has ended (subject to meeting legal requirements).
Property Division: How property, superannuation, financial resources, and liabilities are divided.
Superannuation Considerations
If applying for a superannuation splitting order under Section 90XT of the Family Law Act, you must:
Provide proof of the superannuation interest’s value.
Use the method specified by the Family Law (Superannuation) Regulations 2001 to calculate its value.
Consider the tax implications.
Ensure that any base amount allocated does not exceed the value of the superannuation interest.
You must also notify the Trustee of the superannuation fund 28 days before filing, outlining the terms of the orders and allowing them to object. If the Trustee does not object within 28 days, you can proceed with your application. For more details about superannuation interests, please refer to PART VIIIB of the Family Law Act.
Special Requirements for De Facto Relationships
When applying for orders related to maintenance or property settlement in a de facto relationship, you must prove that you meet the eligibility and geographical requirements. If your relationship ended more than two years before the filing date, section 44 of the Family Law Act requires that you consent to the Court making the orders, or you must seek leave to apply.
How To File Application For Consent Orders? Where to Lodge Application For Consent Orders?
File your Application for Consent Orders electronically through the Commonwealth Courts Portal by filing:
an Application for consent orders, and
a copy of your proposed consent orders.
The person who lodges the application and pays the fee should be listed as the applicant.
Printing Your Sealed Copy After eFiling
If you submit your Application for Consent Orders via eFiling, you can easily access and print a sealed copy directly from the Commonwealth Courts Portal for your records.
Lodging Through a Court Registry
For applications lodged at a court registry, once your documents are accepted for filing, sealed copies will also be made available on the Commonwealth Courts Portal. You will receive an email notification confirming the filing and providing your file number.
Portal Registration
If you are not already registered on the Commonwealth Courts Portal, it’s essential to do so. The registration process is straightforward. Each party involved in the application should have their own portal registration to access the relevant documents.
Managing your application for Consent Orders through the Commonwealth Courts Portal ensures a streamlined process for accessing and printing sealed copies of your documents. Whether you file electronically or through a court registry, you can track the status of your application and download sealed orders once they are approved.
Court Consideration of the Application
After your application is submitted, the Court will review it. If the Court approves the orders, the sealed orders will be uploaded to the portal for you to download. You will be notified if the Court does not approve the orders. The Court may take four to ten weeks to process your Consent Orders application.
Contacting the Court for Updates
If you need to follow up on your consent order application, you can call or email the Court registry where your application was filed.
When contacting the registry, include your full name, date of birth, the other party’s name, and your file number, if available, to help the court staff locate your matter quickly and conveniently.
Disclaimer: Please note that family law is a dynamic, complex, and ever-evolving area of law. The information provided here is intended as a general guide and may not cover all aspects of your specific situation. We advise you to contact us directly for personalized legal advice to ensure your rights and interests are fully protected.
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