Understanding Consent Orders in Australian Family Law.
When a relationship ends, sorting out post-separation arrangements, especially those involving children and finances, can be overwhelming. Many couples prefer to reach an amicable agreement rather than face the stress and expense of going to court. But here’s the catch: informal agreements, whether verbal or written, aren’t legally enforceable. That means if disagreements arise later, you could be left unprotected.
So, how can you secure a fair and legally binding arrangement? This is where family lawyers play a crucial role. By formalizing agreements through consent orders, you gain certainty and legal protection. These court-approved orders, issued by the Federal Circuit and Family Court of Australia (FCFCOA), ensure that parenting arrangements and property settlements are enforceable.
In this article, we’ll walk you through the legal framework, the application process, and what you need to know about family court orders. Plus, we’ll break down key statutes and case law to help you understand why these agreements matter, and how to navigate them effectively.
What Are Consent Orders?
A consent order is a written agreement approved by a court that covers arrangements related to parenting, property, and financial matters following separation. In parenting cases, they outline where children will live, how much time they will spend with each parent, and how major decisions regarding their welfare will be made. In financial and property matters, Consent Orders deal with the division of assets, liabilities, and superannuation.
Once approved by the court, Consent Orders become legally binding. This means that if one party fails to comply, the other can take legal action to enforce the terms of the agreement. Consent Orders provide a way for parties to formalize their arrangements without the stress and cost of a contested court process.
These orders cover two main areas:
- Parenting Consent Orders – Address child custody, visitation schedules, parental responsibilities, and decision-making regarding education, health, and welfare.
- Property Settlement Consent Orders – Govern the division of assets, debts, superannuation, and spousal maintenance.
Once granted, consent orders have the same legal force as court-imposed decisions and are enforceable under Australian family law.
The Legal Framework Governing Consent Orders.
The Family Law Act 1975 (Cth).
The Family Law Act 1975 (Cth) provides the legislative foundation for family court orders, ensuring that agreements serve the interests of all parties involved, especially children.
- Parenting Orders: Section 65D(2) states that courts may issue parenting orders by consent, provided the arrangement prioritizes the child’s best interests under Section 60CC.
- Property Orders: Section 79 allows the court to approve financial settlements, ensuring they are “just and equitable.”
- Binding Nature: Section 90KA confirms that agreements formalized as legally binding agreements or court orders must be upheld unless overturned due to fraud, mistake, or duress.
Family Law Rules 2004 (Cth).
The Family Law Rules 2004 outline the procedural requirements for applying for consent orders. Rule 10.15 requires applicants to submit Form 11, along with supporting documents, to ensure transparency and fairness in court-approved settlements.
The Process of Applying for Consent Orders.
1. Negotiating and Drafting the Agreement.
The first step is reaching a mutual agreement on parenting or property matters. While informal discussions can help, legal advice ensures that the terms align with Australian family law. Legal professionals often draft agreements to ensure they are comprehensive and legally sound.
2. Preparing the Application.
To formalize an agreement, both parties must complete and submit an Application for Consent Orders (Form 11) to the FCFCOA. Required documents include:
- The written agreement detailing the agreed terms.
- Financial statements for property settlements.
- Parenting plans outlining custody arrangements (if applicable).
3. Court Assessment and Approval.
The court assesses the application to ensure:
- Parenting orders align with the child’s best interests.
- Property settlements are fair and equitable.
- No party is being coerced or disadvantaged.
If the agreement meets legal requirements, the court grants family court orders, making the terms legally enforceable.
4. Enforceability and Compliance.
Once issued, consent orders must be followed by both parties. Breaches can result in enforcement proceedings, fines, or other legal consequences.
Parenting Consent Orders: Prioritizing the Child’s Best Interests.
Under Section 60CC of the Family Law Act 1975, the court considers several factors when approving parenting agreements:
- The child’s right to a meaningful relationship with both parents.
- The need to protect the child from harm or neglect.
- The impact of separation on the child’s well-being.
Legal Precedents in Parenting Consent Orders.
- Goode v Goode (2006) – Established the presumption of shared parental responsibility unless contrary to the child’s best interests.
Property Settlement Consent Orders: Ensuring Equitable Division.
Property settlements must comply with Section 79(2) of the Family Law Act 1975, which mandates that asset division be “just and equitable.” Courts consider:
- Each party’s financial and non-financial contributions.
- Future needs, such as income disparity or caregiving responsibilities.
- Any significant sacrifices made during the relationship (e.g., one party giving up career prospects to raise children).
Case Law on Property Settlements.
- Stanford v Stanford (2012) – Reinforced the principle that property division must be based on fairness rather than equal division.
- Bevan & Bevan [2013] FamCAFC 116 – Highlighted that the court retains discretion to reject unfair agreements even if both parties consent.
When Can Consent Orders Be Set Aside?
While consent orders are binding, they may be set aside in certain circumstances under Section 79A of the Family Law Act 1975, including:
- Fraud or misrepresentation – If one party conceals assets or provides false financial disclosures.
- Significant changes in circumstances – If an agreement becomes impractical due to unforeseen events, such as illness or financial hardship.
- Unfairness or undue influence – If a party was coerced into signing an agreement that results in severe disadvantage.
In Thorne v Kennedy (2017), the High Court ruled that a property settlement consent order was invalid due to undue influence and an unfair bargaining position. The court emphasized the importance of ensuring that agreements are made freely and without pressure.
Key Benefits of Obtaining Consent Orders.
- Legal Certainty – Eliminates ambiguity, providing a legally enforceable framework for post-separation arrangements.
- Avoids Litigation – Reduces legal costs and emotional stress by avoiding lengthy court proceedings.
- Finality and Protection – Prevents future disputes by formally recording agreements.
- Child Welfare Protection – Ensures that child custody orders are in the best interests of the children.
- Fair Property Distribution – Protects financial interests by securing a legally binding agreement on asset division.
Common Misconceptions About Consent Orders.
1. “We Have an Informal Agreement, So We Don’t Need a Consent Order”
Informal agreements, whether written or verbal, are not legally enforceable. If one party fails to comply, the other has no legal recourse. Consent orders provide legal certainty and protection.
2. “Consent Orders Are Just a Formality”
The court does not automatically approve consent orders—they must meet legal requirements to be valid. Agreements that are unfair, impractical, or against the best interests of the child may be rejected.
3. “Once a Consent Order Is Issued, It Can Never Be Changed”
While consent orders are legally binding, they can be modified in exceptional circumstances, such as major changes in financial status or parental ability. However, parties must apply to the court to seek a variation.
Conclusion: Why Consent Orders Are Essential in Family Law
For separated couples, consent orders offer a clear, enforceable, and legally recognized way to settle parenting and financial matters. Whether securing child custody orders or finalizing property settlement consent orders, these legally binding agreements provide stability and protection under Australian family law.
To safeguard your rights and interests, seeking professional legal advice is crucial before entering into family court orders. Understanding the legal framework surrounding consent orders can help you navigate post-separation arrangements with confidence and security.
