Consent Orders for Parenting and Property Matters: A Step-by-Step Guide

Introduction.

When a relationship breaks down, decisions about children, finances, and shared property can quickly become complicated and emotionally charged. Many separating couples want to avoid drawn-out court proceedings but still seek legally binding arrangements for parenting responsibilities and property division. Understanding how to formalise agreements through consent orders not only helps maintain stability for children but also provides legal certainty for both parties, reducing conflict and future disputes.

For personalised guidance on how to secure legally binding agreements, consult Nowra Family Lawyers to ensure your arrangements are fair, enforceable, and tailored to your circumstances.

Understanding the Purpose and Function of Consent Orders.

Consent orders are legally binding agreements approved by the Family Court of Australia or the Federal Circuit and Family Court of Australia (FCFCOA). They formalise arrangements for both parenting matters and property division following separation or divorce. Unlike private agreements or informal arrangements, consent orders carry the weight of a court order, meaning they can be enforced if one party breaches the terms.

Under the Family Law Act 1975 (Cth), the Court has the power to make consent orders when parties have agreed on parenting or property matters. The Act promotes resolution outside of litigation, encouraging parties to reach an agreement before seeking judicial determination. By lodging an Application for Consent Orders with the Court, the agreement becomes enforceable without requiring either party to attend a hearing.

For parenting arrangements, consent orders can set out where a child lives, how much time they spend with each parent, and other matters such as schooling, medical care, and religious upbringing. For property matters, they can formalise how assets, liabilities, and superannuation are divided between the parties. This dual function makes consent orders a valuable tool for resolving family law issues comprehensively and efficiently.

The Legal Framework Behind Consent Orders.

The Family Law Act establishes the legislative framework for consent orders. For parenting orders, the Court must consider the best interests of the child as the paramount consideration under section 60CA of the Act. Section 60CC outlines the factors the Court must take into account, including the benefit of children having meaningful relationships with both parents and the need to protect them from harm.

For property matters, sections 79 (married couples) and 90SM (de facto couples) of the Act allow the Court to make orders altering the interests of parties in property. When parties agree, the Court will only approve consent orders if they are “just and equitable,” meaning the division is fair in the circumstances.

Cases such as Mallet (1984) 156 CLR 605 and Stanford v Stanford (2012) 247 CLR 108 have shaped the Court’s approach to property settlements, reinforcing the principle that fairness and justice underpin decisions about asset division. In parenting matters, cases like Goode v Goode (2006) FamCA 1346 provide guidance on applying the “best interests” principle, particularly in shared parenting arrangements.

Why Consent Orders Are Preferable to Informal Agreements.

Many separating couples initially rely on verbal or written informal agreements. While these may work in the short term, they lack enforceability. If one party decides not to comply, the other has limited recourse. Consent orders provide certainty, meaning that if a parent breaches parenting arrangements or refuses to transfer property, the Court can intervene.

Consent orders also offer a sense of closure. Knowing that their arrangements are recognised by law helps parties move on, and importantly, it protects the welfare of children by providing consistency and stability. For property settlements, consent orders can prevent future claims. Under section 44(3) of the Family Law Act, property settlement applications must generally be made within 12 months of a divorce becoming final (or two years after a de facto relationship ends). A properly drafted consent order finalises the financial relationship and stops either party from making further claims later.

The Step-by-Step Process for Obtaining Consent Orders.

Step One: Reaching an Agreement.

The process begins with the parties negotiating and agreeing on parenting and/or property arrangements. Many couples do this directly, while others seek assistance from mediators or family dispute resolution practitioners. Mediation is strongly encouraged under the Family Law Act and, in parenting matters, is often a prerequisite before filing any application in court (except in urgent cases or where there is family violence).

Step Two: Drafting the Orders.

Once an agreement is reached, the terms must be documented. This is not simply a matter of writing out what has been agreed. The orders must be carefully drafted in clear legal language so they can be enforced. Parenting orders, for example, should specify pick-up and drop-off times, school holiday arrangements, and how decisions about health or education will be made. For property orders, details about the transfer of real estate, division of superannuation, or payment of spousal maintenance must be precise.

Step Three: Preparing the Application for Consent Orders.

The parties file an Application for Consent Orders (Form 11) with the FCFCOA. This includes providing personal details, a summary of assets and liabilities (for property matters), and information about the children (for parenting matters). Supporting documents, such as financial statements or title deeds, may also need to be included.

Step Four: Filing with the Court.

The application and draft orders are filed with the Court, and the required filing fee is paid (fee exemptions may apply for eligible applicants). The Court reviews the documents “on the papers,” meaning there is no need for a hearing unless there is a problem with the orders.

Step Five: Court Approval.

The Court assesses whether the proposed orders are appropriate. For parenting orders, this means checking that they are in the best interests of the children. For property orders, the Court must be satisfied the agreement is just and equitable. If everything is in order, the Registrar seals the orders, and they become legally binding.

Step Six: Implementation and Compliance.

Once sealed, the parties must comply with the terms. If property transfers are required, they must be executed within the timeframes set out. Parenting arrangements must be followed unless both parties agree to minor changes.

Key Considerations for Parenting Consent Orders.

Parenting consent orders can cover a wide range of issues beyond just living arrangements. They may include provisions for overseas travel, who holds passports, how parents communicate about the children, and dispute resolution mechanisms if disagreements arise in the future.

Importantly, the Court will not approve orders that are contrary to the child’s best interests. For example, if one parent has a history of family violence, orders allowing unsupervised time with the children might not be approved. The Family Violence Best Practice Principles guide the Court in making decisions that protect children from harm.

Key Considerations for Property Consent Orders.

Property consent orders must deal with all aspects of the financial relationship, including real estate, vehicles, bank accounts, investments, debts, and superannuation. Orders should also consider tax implications, stamp duty exemptions (which often apply to transfers pursuant to family law orders), and timeframes for execution.

Superannuation splitting is a common feature of property consent orders. Under Part VIIIB of the Family Law Act, superannuation is treated as property and can be divided by consent orders. The trustee of the superannuation fund must be provided with procedural fairness and notified before the order is made.

Pitfalls and Mistakes to Avoid.

One of the most common mistakes in consent order applications is failing to draft clear and workable terms. Ambiguous wording can lead to disputes about interpretation. For example, stating that a child will spend “reasonable time” with one parent is vague; specific times and dates should be used.

Another issue is not considering future changes. While consent orders can be varied in limited circumstances, they are designed to be final. Parenting orders can be modified if there is a “significant change in circumstances,” as per the principle in Rice v Asplund (1979) FLC 90-725, but property orders are rarely altered once made.

Failing to disclose assets is another serious error. The Family Law Act imposes a duty of full and frank disclosure in financial matters. If a party hides assets, the consent orders may later be set aside under section 79A or 90SN of the Act.

When the Court May Refuse to Make Consent Orders.

Although the process is designed to be straightforward, the Court does not automatically approve every application. For parenting orders, if the agreement is clearly not in the best interests of the child, for example, if it places them in an unsafe environment, the Court may refuse to make the orders.

For property orders, if the proposed division is manifestly unfair, the Court can reject the application. This protects vulnerable parties from being pressured into unfair deals. In Pavlovic v Pavlovic [2014] FamCAFC 152, the Full Court emphasised the importance of the “just and equitable” test, ensuring parties receive a fair share based on their contributions and future needs.

Enforcing Consent Orders.

Once consent orders are made, they carry the same weight as any other court order. If a party breaches a parenting order, the other can file a Contravention Application, and the Court may impose penalties ranging from make-up time with the children to fines or, in serious cases, imprisonment.

For property orders, non-compliance can lead to enforcement proceedings, including the appointment of a Registrar to sign documents on behalf of a non-compliant party or even orders for the seizure and sale of assets.

Modifying or Setting Aside Consent Orders.

While consent orders are intended to be final, there are limited circumstances where they can be changed or set aside. Parenting consent orders may be varied if there has been a significant change in circumstances affecting the best interests of the child. For property consent orders, section 79A and 90SN allow the Court to set aside orders if there has been fraud, duress, non-disclosure of assets, or impracticality in carrying out the order.

In Simpson v Hamlin [2014] FamCAFC 95, the Court confirmed that setting aside property orders is exceptional and will not be done lightly. Finality is a key principle in property settlements.

Why Legal Advice Matters.

Although parties can prepare and file consent orders themselves, legal advice is strongly recommended. Family law is complex, and poorly drafted orders can create future disputes or fail to protect your interests. Lawyers can ensure the orders reflect the agreement accurately, comply with the Family Law Act, and protect against unforeseen issues like tax liabilities or enforceability problems.

Moreover, lawyers can help ensure that any agreement you enter into is fair and that you fully understand its implications. Once made, consent orders are difficult to undo, so obtaining legal guidance early in the process can prevent costly mistakes.

Conclusion.

Family law matters can be emotionally overwhelming and legally complex. If you are considering formalising your parenting or property arrangements, take time to understand the legal process and your rights under the Family Law Act. Consent orders can provide the structure and enforceability you need, but they must be prepared with care. Before signing any agreement, consider speaking to a qualified family lawyer to ensure the outcome is fair, compliant with the law, and truly reflects the arrangements you intend for the future.

For clear and reliable legal guidance, consult Nowra Family Lawyers to help you navigate the consent order process with confidence and care.