Are Consent Orders legally Binding?
Yes, Consent Orders approved by the Federal Circuit and Family Court of Australia (FCFCoA) are legally binding.
Even though they are an agreement reached by the parties themselves, once they are approved and sealed by the Court, they become orders of the Court. This means they carry the same legal weight and enforceability as if a judge had made them after a contested hearing.
What Happens if They Are Breached?
Breaching (or contravening) a Consent Order is a serious matter, as it means disobeying a court order. The consequences can vary depending on the nature and severity of the breach, whether it was intentional, and whether there was a “reasonable excuse.”
The Family Law Act defines what constitutes a “reasonable excuse,” which can include:
- A belief on reasonable grounds that the action was necessary to protect the health or safety of a person (including a child).
- Not understanding the obligations imposed by the order, and the Court considers the person ought to be excused.
- The contravention did not last longer than necessary to protect health or safety.
If a party breaches a Consent Order without a reasonable excuse, the other party can seek enforcement from the Court.
How Do You Enforce Consent Orders?
Enforcing Consent Orders involves taking formal steps through the FCFCoA. The process varies slightly depending on whether the orders are parenting orders or financial/property orders, but generally involves:
Attempting Resolution (Before Court Action – Especially for Parenting Orders):
- Communication: Initially, try to communicate with the other party to understand why the breach occurred and if it can be resolved informally. Misunderstandings can sometimes be the cause.
- Family Dispute Resolution (FDR): For parenting orders, the Family Law Act 1975 generally requires parties to attempt Family Dispute Resolution (mediation) before applying to the Court for contravention. A certificate from a registered FDR practitioner is usually needed unless there’s an exemption (e.g., urgency, family violence, child abuse). This step is also often beneficial for financial matters, though not always mandatory for court application.
Documenting the Breach:
- Maintain thorough records of all reported breaches and gather any supporting evidence.
Get Some Legal Advice:
- Talk to a lawyer – they can
- Advise on the most appropriate enforcement method.
- Help prepare the necessary court documents.
- Explain the potential consequences for both parties.
Applying to the Court for Enforcement (Contravention Application):
- If resolution cannot be achieved, you can apply to the FCFCoA by filing an Application – Contravention (for parenting orders) or an Application – Enforcement (for financial orders, or sometimes a general Application in a Proceeding).
- This application must be supported by an Affidavit detailing the alleged breaches, providing evidence, and explaining why the Court should intervene.
- For parenting order contravention you will generally need to provide the FDR certificate or an affidavit outlining your reason for an exemption.
Court Hearing and Potential Outcomes:
The Court will hear the application and consider the evidence. The consequences include:
Are consent orders legally binding for Parenting Orders (Breach/Contravention):
- Attendance at a Post-Separation Parenting Program: To help parents understand their obligations.
- Compensatory “Make-Up” Time: Ordering the breaching party to allow the other parent to spend additional time with the child to compensate for missed time.
- Varying Existing Orders: If the current orders are no longer practical or safe due to the breach, the Court may change them.
- Bonds: Requiring the breaching party to enter into a bond (a sum of money or property that may be forfeited if the order is breached again).
- Fines: Imposing a financial penalty.
- Costs Orders: Ordering the breaching party to pay the other party’s legal costs.
- Imprisonment: In very serious, repeated, or deliberate cases of non-compliance, imprisonment is a possibility, though it is a last resort.
Are consent orders legally binding for Financial/Property Orders (Enforcement)?
- Orders for Information Disclosure: Compelling the non-compliant party to provide financial information or documents.
- Enforcement Warrants:
- Warrant for Seizure and Sale of Property: Directing a Sheriff to seize and sell the property of the non-compliant party to satisfy a debt (e.g., if a payment ordered has not been made).
- Earnings Redirection Order (Garnishee Order): Directing an employer to pay a portion of the non-compliant party’s wages directly to the other party.
- Third Party Debt Notice: Directing a bank or other third party holding money for the non-compliant party to pay it to the other party.
- Order to Sign Documents ( Family Law Act 1975 Sect 106A): If a party refuses to sign a document required by the orders (e.g., property transfer documents), the Court can order another person (e.g., the Registrar) to sign on their behalf.
- Sequestration of Property: Appointing a receiver to manage and potentially sell property to satisfy the order.
- Contempt of Court: In extreme and deliberate cases of defiance, a party can be found in contempt of court.
Important Considerations:
- “Reasonable Excuse”: The Court will always consider whether the breaching party had a “reasonable excuse” for non-compliance.
- Severity of Breach: The Court weighs the seriousness and frequency of the breach, its impact on the children (for parenting orders), and the intent behind it.
- Police Involvement: Generally, the police do not enforce civil family law orders like property settlements or routine parenting schedules. Their involvement is usually limited to situations involving immediate safety concerns, family violence, or child abduction (where a recovery order might be in place).
Because the consequences of breaching Consent Orders can be significant, and the enforcement process complex, it is always advisable to seek comprehensive legal advice if you believe an order has been breached or if you are accused of breaching one.
