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      Consent Orders in Australia: Everything You Need to Know 1024 664 Dorter

      Consent Orders in Australia: Everything You Need to Know

      Separation or divorce can be a stressful and emotionally challenging experience for couples, especially when they have to make decisions about property division and parenting arrangements. One way to formalise these agreements and make them legally binding is through a consent order.

      Consent orders are a legal tool that separated couples can use to protect themselves and their families. This article will answer some common questions about consent orders in Australia, including how to obtain them, what they can be used for, and their advantages and limitations.

      What is a Consent Order?

      When a couple separates, they must make decisions about property and parenting arrangements. These decisions can be made privately between the parties by agreement, or through the court. Informal agreements are not legally binding, which means that the parties may have no legal recourse if one of them does not comply with the agreement or changes their mind later.

      A consent order is a legal document that formalises the agreement reached between the parties. This makes the agreement legally binding, meaning that both parties have legal protection if either of them does not comply with the terms of the agreement.

      What Are Consent Orders For?

      Consent orders can be made for parenting and property settlement matters, which are typically the most common issues that separated couples need to resolve.

      Parenting arrangements can include custody, access or ‘time with’ arrangements, and communication, while property settlement consent orders can cover the division of assets, such as real estate, investments, and personal property, as well as superannuation and spousal maintenance.

      It’s important to note that consent orders can only be made for matters falling under the jurisdiction of the Family Law legislation. Consent Orders require the approval of the Court before the agreement is enforceable as an Order. The Court requires that the agreement reached between the parties is fair and equitable (in accordance with the legislation and case law) before approving a consent order.

      Other legal matters, such as child support or divorce, require separate applications, and seeking legal advice from an expert family lawyer can ensure that your rights and interests are protected.

      How to Obtain a Consent Order

      Here are the step-by-step instructions for obtaining a consent order in Australia:

      1. Reach an agreement: Before applying for a consent order, the parties must first reach an agreement on certain issues. This can be done through negotiation, mediation, or other dispute-resolution methods.
      2. Prepare the application: Once an agreement is reached, the parties must prepare an Application for Consent Orders. This application includes proposed consent orders, being the terms of the agreement, and supporting information that are required by the Court to assess the reasonableness of the agreement.
      3. Lodge the application: The application must be lodged with the Federal Circuit and Family Court of Australia. The Court will then review the application and assess the agreement to ensure that it is fair and equitable.
      4. Decision by Court: If the Court is satisfied with the agreement, the Court will generally make the consent orders.
      5. Receive the order: Once the consent orders are made, both parties will receive a copy of the orders. The orders become legally binding and enforceable at this time.

      The process of obtaining a consent order normally takes a few weeks and in some rare cases months, depending on the complexity of the agreement and the Court’s workload.

      Can an Application for a Consent Order be Rejected?

      In some cases, the Court may reject an application for consent orders. This could happen if the agreement reached between the parties is not deemed fair or reasonable, or if it’s not in the best interests of any children involved. Additionally, if the documents filed are incomplete or incorrect, the court may reject or requisition the application.

      If an application is rejected, parties can work to revise the agreement and re-apply for a consent order. However, it’s always best to ensure that the agreement reached is fair and reasonable before submitting an application to the court. Seeking the advice of a family law professional can help ensure that the application is submitted correctly, increase the likelihood of its approval, and reduce the risk of any delay.

      Does a Consent Order Expire?

      A consent order does not have an expiry date, which means it remains legally enforceable until it is varied or set aside by the Court. However, it’s important to note that there are limited circumstances in which a consent order can be altered or set aside. Some examples include if there has been a significant change in circumstances, fraud, or duress.

      If you believe there has been a significant change in circumstances, fraud, duress, or some other reason that warrants a variation or termination of a consent order, you should seek legal advice.

      What Happens if a Consent Order is Breached?

      If a party breaches a consent order, the other party can take legal action to enforce the order. Breaching a consent order can result in serious legal consequences such as fines, or other penalties. In extreme cases, a person found to have breached an Order can be ordered to serve a term of imprisonment.

      If you suspect that a consent order has been breached, you should seek legal advice immediately to determine the best course of action. In some cases, it may be appropriate to negotiate with the other party to resolve the issue. In other cases, legal action may be necessary to enforce the order or seek compensation for any losses incurred.

      If there are changes in circumstances that make it difficult for you to comply with the terms of the consent order, it’s highly recommended that you seek legal advice before applying to make any changes to the order or breaching the Order. This can prevent potential legal consequences and ensure that the agreement remains fair and reasonable for all parties involved.

      How Can a Lawyer Help with Consent Orders?

      Applying for consent orders can be a complex and sometimes daunting process. Seeking the help of an expert family lawyer can ensure that the process is as smooth as possible. A family lawyer can offer legal advice on the agreement, ensuring that it is fair and equitable, and help clients to understand their legal rights and obligations.

      Lawyers can also assist in the preparation of the necessary documents and filing of the application with the Court. They can communicate with the Court on behalf of their client, and if needed, represent their client in Court proceedings.

      In addition, if a consent order has been breached, a lawyer can advise on the available legal remedies and represent their client in court proceedings to enforce the order or seek variations. A lawyer can also assist in negotiating a new agreement or variation to a consent order.

      Consent Orders: Move Forward with Confidence

      Separation and divorce can be emotionally challenging, but consent orders provide a practical and beneficial way for parties to reach agreements on parenting and property settlement matters. Although obtaining a consent order is not mandatory in Australia, it is strongly recommended because it offers legal protection and enforceability of the terms of the agreement, providing peace of mind for both parties.

      In addition to offering legal protection, seeking legal advice can help ensure that the agreement is fair and reasonable, and that the necessary paperwork is correctly prepared and submitted, and will be approved by the Court. With the assistance of a family lawyer, clients can navigate the process of applying for a consent order and move forward with confidence.

      Ultimately, consent orders provide a useful tool for resolving disputes in separation and divorce. By obtaining consent orders, parties can ensure that their agreement is legally binding and enforceable, providing them with greater certainty and security for the future.

      If you need legal advice regarding an agreement with a former partner, you can contact us at Dorter Family Lawyers & Mediators. Our firm is well-versed in negotiating and preparing consent orders and various agreements that may need to be made as part of a separation.

      Call us today on 02 9929 8840 or book a consultation online here.

        What if my ex-partner won’t comply with Court Orders? 1024 745 Dorter

        What if my ex-partner won’t comply with Court Orders?

        So, the Court has made Orders, or you’ve got a binding agreement. You’ve spent a lot of money on litigation or having a lawyer negotiate and prepare a formal agreement setting out your respective legal rights and obligations. You want to move on with your life, but your ex won’t let you.

        Unfortunately, this scenario is somewhat common in Australia. However, while it is common, it’s not impossible to overcome. In this article, we’re going to help you understand Court Orders, including what may happen when you or the other party don’t comply with them and how you can enforce them.

        The family law system in Australia is complex and often overwhelming for those involved in a legal matter, so before we dive into how you can have Court Orders enforced, let’s talk about Court Orders generally.

        Table of Contents:

        What is a Court Order?

        A court order is a decision that helps to resolve a legal matter and is made by a judge or judicial officer.

        Essentially, a Court Order is a set of rules or decision that is legally binding and provides clarity of the legal relationship (obligations and rights) between the people (parties) involved in the legal matter.

        Court Orders can be made in a few different ways. A Court Order may be made after two parties have made a private agreement regarding a matter, such as how they plan to parent after a separation, and they wish to make it legally binding – this is known as a consent order. Court Orders are also often made after a hearing or trial.

        When Court Orders are made for family law matters in Australia, they are usually about parenting or financial issues.

        Are there different types of Court Orders?

        There are a few different types of Court Orders, including:

        Final Orders

        These orders are the orders that resolve a legal matter and bring it to an end.

        Interlocutory Orders

        An interlocutory or interim order is commonly made in situations where the matter is urgent or a decision is needed before a final trial. This type of order is temporary and usually put in place until final orders can be made.

        Consent Orders

        For many family law matters you have the option to resolve the matter privately, outside of the courts. However, if you don’t formalise the agreement and make it legally binding, the parties are relying on each other to uphold their end of the agreement. A consent order is an order that makes a private agreement between parties legally binding.

        What kinds of matters can court orders be made for?

        As we touched on above, in a family law context, Court Orders are usually made for parenting concerns or financial matters.

        Parenting Orders

        These kinds of orders are made about parenting matters such as communication and/or spending time between parents and their children, where the child/ren may live, and other welfare related arrangements for children.

        Parenting orders can be applied for by any person who is concerned with the care, welfare, and development of a child, which may include the child’s parents, grandparents and relatives.

        When the Court is making a decision regarding a parenting order, the best interests of the child are the paramount consideration. The Court needs to consider two key factors – the benefit to the child of having a meaningful relationship and bond with both parents and the need to protect the child from harm (including psychological and physical harm).

        Parenting orders can be applied for at any time, including before, after or during a separation or divorce.

        Financial Orders

        Financial orders are usually made to resolve matters such as the division of property and assets or providing financial support after the breakdown of a relationship (spousal maintenance).

        As part of making the Orders, the Court will need to ensure that the arrangements set out are “just and equitable” for each party, and often they will require detailed information from each party to ensure that this is the case.

        There are time limits which apply to persons seeking to apply for financial orders. For couples who were married, they have 12 months after a divorce order has been granted to apply for financial orders. For de facto relationships, financial order applications need to be made within two years of the relationship ending.

        What happens when you don’t comply with a Court Order?

        Non-compliance with a Court Order, also referred to as breaching a Court Order, means that a party has not followed the rules or regulations that have been provided as part of their Court Order.

        However, while it may be frustrating that a person isn’t following a legally binding order, they are not going to be immediately arrested for this. Rather, for there to be any consequences for the non-compliance of the Order, the other party involved will need to file a Contravention Application or an enforcement application.

        Contraventions

        This application essentially alerts the Courts to the non-compliance of the Order and can result in the person who has not been compliant facing serious consequences. They could face penalties such as having to participate in counselling, performing community service, paying a fine, paying compensation to the other party, or in particularly serious circumstances, they could face imprisonment.

        Before filing a Contravention Application an attempt to resolve the matter through a means such as Family Dispute Resolution must occur, in most circumstances. If you have attempted to obtain Family Dispute Resolution or have been ruled as exempt from this requirement, you can then apply for the Contravention Application.

        To make your Contravention Application you will need to submit an affidavit providing information of how the accused party has contravened the Orders, and either the Family Dispute Resolution Certificate or proof of your exemption.

        It’s important to be aware that a breach of Court Orders can happen in a variety of different ways. It must also be considered whether the breaching party had what is known as a “reasonable excuse” for not complying with the order.

        Reasonable excuses that may be accepted by the Court include:

        • The party that breached the Order believed that their actions were required to protect the health and safety of a person or child; or
        • The actions of the party causing the breach did not continue longer than was necessary to protect the health and safety of the person. 

        If someone has breached an Order, what should you do?

        If you find yourself in a situation where the other party to your agreement, your ex for example, is not complying with an Order, it’s important to take a step back and consider the circumstances of the situation. Below, we’ve included some things to think about if a breach of an Order occurs:

        Non-compliance with Parenting Orders

        Has the other parent breached or contravened your parenting Orders? A party may file a Contravention Application if another party has breached Court Orders. Before taking any action, the aggrieved party must consider two questions;

        1. Did the other parent have a reasonable excuse? and
        2. What do I want to achieve by going to Court?

        If the answer to question 1 is yes, then you should reconsider before hastily filing an application in Court. 

        So, what do you wish to achieve?  If the answer to that question is that you hope to seek to change the Orders, you may wish to consider making an interim application or a new final orders application. If the breached Orders are final, there will need to have been a significant change in circumstances. The change in circumstances could be the breach of the Orders, but it depends on the circumstances of the breach.

        Non-compliance with Financial Orders

        Unfortunately, from time-to-time parties are unable to fulfil their obligations for various reasons. There are times where a party may also try to evade their obligations. Below are some examples of common breaches that occur with property orders:

        1. Has your ex-partner refused to sign a document? – The Court can order a Registrar to sign a document on their behalf.
        2. Has your ex-partner refused to make a payment? – You could Consider making an application for Third Party Debt Notice. A Third Party Debt Notice is the Family Court version of a garnishee order. It allows the Court to order that a payment be made from a party’s source of income/capital e.g. salary or savings.
        3. Has your ex-partner refused to make a payment and have no cash or income? – You can consider making an application for the sale of their property so that you may receive your entitlement.

        Interest may be payable under the Court Rules if the Court makes an order for payment and the payment is made late.

        Plan for the worst

        It may be cynical, but as the saying goes, it is always better to be safe than sorry. When you are negotiating your agreement, consider what will happen if a payment is not made or your ex-partner skips the country. In most circumstances, there might be an appropriate alternate outcome if a party defaults or form of security that can be offered if that a party fails to comply. 

        It’s also important to consider seeking legal advice from an experienced family lawyer. A family lawyer can help you understand your options and obligations so that you can make informed decisions for your future.

        If you would like any assistance with compliance of Orders or Agreements, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 9929 8840.