Consent orders are a legal way to formalise agreements on parenting matters (known by many as child custody) and property division following separation. They ensure your arrangements are binding and enforceable under Australian family law.
What are consent orders?
If you and your ex-partner have reached an agreement on the parenting arrangements and/or how the property will be divided, you can apply to the Federal Circuit and Family Court of Australia (Division 2) (the Court) to have your agreement made into orders.These are called consent orders.
You are able to apply for consent orders for both parenting and property in the same application, as well as separately. You can also apply for consent orders to discharge or vary existing family law orders.
The Court still has to be satisfied as to various matters for orders to be made, even if they are sought by consent between the parties.
See our article on Parent Plans vs Consent Orders.
Do I need a lawyer to apply?
No, you don’t need a lawyer, you can do it yourself. To apply for consent orders, you file a detailed Application for Consent Orders, Minutes of Consent setting out the agreement you have reached, and other accompanying documents depending on the orders that you seek.
There are many benefits of course associated with receiving legal advice about the agreement or how to draft the documents, but it’s not a requirement.
When can I apply?
The short answer – for most, any time after you have separated on a final basis if there is agreement. You don’t need to be divorced, as long as the separation is final.
The long answer – There are certain timeframes for applying to the Court for property orders, such as within 12 months from the date ofa divorce order takes effect for married couples, or 2 years from the date of separation for de facto relationships. If these time frames have passed, you can still apply for consent orders, if, for example, both parties agree to the application proceeding out of time.
If you think you may be approaching a time limit or have already passed it, we recommend that you get legal advice from a suitably qualified family lawyer, such as Daykin Family Law, as a matter of urgency.
What do I file?
Regardless of whether you are applying for parenting or property orders, you need to complete an Application for Consent Orders and Minutes of Consent setting out the Orders you seek.
The Application for Consent Orders can be downloaded from the Court’s website.
An Application for Consent Orders is a very detailed document. It includes information to assist the Court in determining if the Minutes of Consent can be made into Orders.
It includes general information, including, for example:
- each person’s name, date of birth, occupation etc;
- details about the relationship, when you started living together, married, separated and divorced;
- If there are any ongoing cases or any Orders, parenting plans or Undertaking;
It also includes information specific to the type of application. If you are applying for parenting orders, you may need to provide information about, for example:
- The child/ren;
- What the arrangements will look like, including the housing, financial support, health and education for the child/ren and, anything else relevant;
- If you consider that the child/ren has or is at risk of abuse, neglect or family violence; and
- Why the Orders you seek are in the child/ren’s best interest.
For property, the information can include, for example:
- Each parties’ income;
- The property owned by either person, and its value;
- Any loans or other liabilities that either person may have;
- Any superannuation that either person may have;
- Considerations relating to the financial, non-financial and parenting contributions of the parties, specific issues pertaining to family violence, or anything else relevant to determining the division of property;
- Considerations relating to the current and future circumstances of the parties;
- How you propose the property pool is divided; and
- Who retains what.
Minutes of Consent
The Minutes of Consent is where you set out the exact orders you are requesting. For parenting, this might include:
- Parental responsibility
- Living arrangements
- Travel and other associated decisions
For property, it might include:
- Transfer of assets (e.g., family home, superannuation split)
- Refinancing mortgages, etc.
It’s crucial that the orders are detailed and clear so the Court can understand your intentions and make decisions accordingly.
Additional Documents
In addition to the above documents, depending on whether you are filing for parenting, property, or both, and the type of orders that you are asking for, you may be required to file additional material.
How do I apply?
The easiest way to apply for consent orders is to file your Application and accompanying documents online, through the Commonwealth Courts Portal.
The Court website has lots of information to assist people with applying, including a step-by-step guide. If you are unable to apply online, you can also apply in person at one of the Court Registries.
There is a filing fee when you apply.
What happens once my Application is filed?
Once your Application is filed, it will be assigned a date to be reviewed by a Judicial Officer. If the court is satisfied as to relevant matters (such as that parenting orders are in a child’s best interests or the property orders are just and equitable), orders may be made on the terms of the Minutes of Consent sought and Court Orders may be issued by the Court.
An application may be requisitioned in some circumstances so that you can, for example, file amended documents or provide further information.
I have Court Orders – what next?
Court Orders are binding and enforceable, so it is important that you comply with all of the Orders and ensure you complete anything by the required date.
If you are unable to comply with an Order or consider that you may not be able to comply in time, you should seek independent legal advice as soon as possible.
Contact Daykin Family Law for help with Consent Orders
Consent orders are one way to formalise an agreement about the care arrangements for your child/ren, or how your property will be divided. There are other ways, and you should seek fulsome legal advice to ensure that your interests are fully protected as the above is just general information.
Contact the team at Daykin Family Law today for expert legal advice and to discuss whether consent orders are right for your situation.
