About Brendan Hanks

Practice manager at Kate Austin Family Lawyers

Entries by Brendan Hanks

Can you change Consent Orders?

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Can you change Consent Orders?

 

Can you change Consent Orders?

 

Put Simply If you agree and the court agrees with the changes – Yes, it’s quite Simple. If you don’t both agree on the changes then there is a number of challenges

 

The easiest way to change your Consent Orders is with the other party’s consent. Therefore, we always suggest that people first speak with the other party about their willingness to change the Consent order before proceeding. If both parties agree to change their consent orders, then an application to the court can be made to obtain fresh consent orders or orders that vary from the current orders.

If you do not have the other party’s consent, the circumstances in which the court will enable you to change your existing Orders are fairly limited.

Before the court will change your parenting Consent Orders it must be satisfied that there has been a significant change in circumstances since the Orders were made that warrants them being reviewed and reconsidered. The court is reluctant to reopen parenting matters and put children through further litigation if it can be avoided.

There are only a limited number of circumstances where you Can change Consent Orders. For example, you must be able to establish that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence or the giving of false evidence to reopen your property case. Alternatively, you have to establish that it is impracticable for the Consent Order or Orders to be carried out in the circumstances that have arisen since the making of the Orders. You could also establish that a person has defaulted in carrying out an obligation required by an Order or that circumstances of an exceptional nature relating to the care, welfare, and development of a child of the relationship have arisen since the making of the Consent Order, which means it should no longer apply. The circumstances in which you can apply to set aside a property settlement Order are very limited, so you should ensure that you review the Orders carefully before signing off on them.

 

Who Can You Talk To About Consent Orders?

If you need someone to talk to about a consent order specifically or have general questions about consent orders, Kate Austin Family Law can help. We are dedicated to Consent Orders in NSW and Queensland. When it comes to consent orders Family Court can be a complicated place, and it pays to have somebody like Kate Austin Family Law on your side.

When it comes to consent orders family law professionals at Kate Austin have got you covered. They offer fixed price the consent orders to ensure you aren’t caught out by high, unexpected fees. Get on online instant Quote here. There’s no reason to put off getting the process started for your consent order with the Kate Austin team. They can help you get consent orders Family Court are likely to approve. If you would like to discuss with us more about Can you change Consent Orders then get in touch with Kate Austin Family Law today and you can feel confident that you are getting the information on consent orders you’ve been looking for.

More information can be found on the Family Court website 

Why get Consent Orders over a parenting plan?

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What is the Difference between a Consent Order, a Parenting Plan, and a Parenting Court Order?

 

Why get Parenting Consent Orders over a parenting plan?

Based on the provided information, here’s why you would choose Parenting Consent Orders over a Parenting Plan:

  • Legally Enforceable Agreement: This is the primary and most significant reason. Parenting plans are not legally enforceable. Consent orders, once approved by the Court, become legally enforceable. This means that if one parent doesn’t follow the agreement outlined in the consent order, the other parent can take legal action to enforce it.
  • Deterrent for Disobeying the Agreement: Because consent orders are legally enforceable, they act as a deterrent. The potential for enforcement and penalties discourages either parent from disobeying the agreement.
  • Procedure for Enforcement: If a parent does violate a parenting consent order, there is a clear procedure for enforcement and potential penalisation. This provides a legal recourse that doesn’t exist with a parenting plan.
  • Carefully regarded in Family Law Matters: While parenting plans are still carefully regarded in family law matters they do not have the legal weight of a consent order.

While both Parenting Consent Orders and Parenting Plans are tools to formalise arrangements for children after separation in Australia, they have crucial differences, primarily concerning legal enforceability and certainty.

Here’s why many parents opt for Parenting Consent Orders over a Parenting Plan:

  1. Legally Binding and Enforceable:
    • Consent Orders: Once a parenting agreement is approved by the Court and made into Consent Orders, it becomes a legally binding court order. This means if one parent breaches the orders (fails to follow them), the other parent can take steps to have the orders enforced by the Court. Breaching a court order can have serious consequences, including make-up time, orders for costs, or other penalties.
    • Parenting Plan: A Parenting Plan is a written agreement signed and dated by both parents. While it shows an agreed intention and the Court must consider its terms if a later dispute arises, it is not legally enforceable in the same way as a court order. If one parent stops following a Parenting Plan, the other parent cannot directly ask the Court to force compliance with the plan itself. They would typically need to apply to the Court for parenting orders (which might reflect the plan, but it’s a new process).

2. Greater Certainty and Security:

    • Consent Orders: Provide a higher degree of certainty and security because the arrangements are formalised by the Court. Both parents know there are legal consequences for non-compliance. This can be particularly important if there’s a history of disagreement or a concern that one parent might not stick to an informal arrangement.
    • Parenting Plan: Offers more flexibility as it can be changed much more easily if both parents agree in writing to the changes. However, this flexibility can also be a downside if one parent frequently seeks changes or if there’s instability.
  1.  3. Process for Making Changes:
    • Consent Orders: To change Consent Orders, you generally need to either:
      • Both agree to new arrangements and apply for new Consent Orders to vary the existing ones.
      • If there’s no agreement, apply to the Court to vary or set aside the orders. This usually requires demonstrating a significant change in circumstances since the original orders were made and proving that the new proposed orders are in the best interests of the child. This makes them more stable and less prone to arbitrary changes by one party.
    • Parenting Plan: Can be changed at any time as long as both parents agree in writing and sign a new plan. While this is simpler, it lacks the formal oversight and legal protection of court orders. It’s important to note that if a Parenting Plan is made after court orders are in place, it generally doesn’t automatically override the court orders unless specific steps are taken (like having the new plan made into new consent orders or if it meets specific legislative requirements to vary an order, which can be complex)
    • 3. Clarity on Contravention (Breach):
      • Consent Orders: The pathway for addressing a breach is clearer. The Court has established procedures for dealing with contraventions of its orders.
      • Parenting Plan: If a Parenting Plan is breached, the recourse is less direct. You might use the plan as evidence of agreed intentions if you later apply for court orders, but you can’t enforce the plan itself.

When might a Parenting Plan be suitable?

  • When parents have a very amicable and cooperative relationship and trust each other to stick to the arrangements.
  • As an interim measure while negotiating terms for Consent Orders.
  • When parents want maximum flexibility and are confident they can manage changes by mutual agreement.

Why choose Parenting Consent Orders?

  • You want the security of a legally binding and enforceable agreement.
  • There are concerns about future compliance or stability of arrangements.
  • You want greater certainty and clear consequences for breaches.
  • You want to ensure that any future changes require a formal process, often involving demonstrating a significant change in circumstances.

In summary, while Parenting Plans offer flexibility and are simpler to create, Parenting Consent Orders provide the significant advantages of legal enforceability and greater long-term certainty, which is why many parents prefer them, especially if there’s any potential for future disagreement or instability

Consent Order vs Binding Financial Agreement (BFA):

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What is the difference between a Consent Order and a Binding Financial Agreement?

Both Consent Orders and Binding Financial Agreements (BFAs) are legal tools in Australian family law that allow separating couples (and those entering or in a relationship) to formalise agreements about financial matters, primarily property division and spousal maintenance. However, they operate differently, have distinct requirements, and offer varying levels of court oversight and flexibility.

Here’s a comparison of Consent Orders vs. Binding Financial Agreements:

Consent Orders

  • What are they? Legally binding orders made by the Federal Circuit and Family Court of Australia (FCFCOA) based on an agreement reached between parties.
  • Court Involvement & Scrutiny:
    • Yes, significant. Parties jointly file an Application for Consent Orders, which is reviewed by a Court Registrar or Judge.
    • The Court must be satisfied that the proposed orders for property division are “just and equitable” (fair in all the circumstances).
    • For spousal maintenance orders, the Court must be satisfied they are “proper.”
    • This judicial oversight provides a “safety net” to ensure fairness.
  • Legal Basis: Primarily under the Family Law Act 1975 (e.g., Section 79 for property orders for married couples, Section 90SM for de facto couples, Section 77A for spousal maintenance).
  • Scope:
    • Division of property and liabilities.
    • Spousal maintenance.
    • Superannuation splitting.
    • Can also include Parenting Orders (though the assessment for these is based on the “best interests of the child” and is separate from financial considerations).
  • Formal Requirements:
    • Parties must make full and frank financial disclosure.
    • The application needs to be in the prescribed form with supporting documentation.
    • While independent legal advice is not strictly mandatory for the Court to make the orders, it is very strongly recommended, and the Court will note whether advice has been obtained. The Court needs to be satisfied the parties understand the orders.
  • When Can They Be Made? Typically after separation. There are time limits for applying:
    • Married couples: Within 12 months of a divorce order becoming final.
    • De facto couples: Within 2 years of separation.
    • Leave of the Court is required to apply outside these times.
  • Enforceability: Legally binding and enforceable as court orders. Breaches can lead to enforcement proceedings.
  • Grounds for Setting Aside:
    • More limited than BFAs once made, as the Court has already assessed their fairness.
    • Can be set aside in specific circumstances such as fraud, non-disclosure of a material fact, duress, unconscionable conduct, a later BFA overriding them, or if they are found to be impracticable.
    • Also, if there has been a significant change in circumstances for children (if parenting orders are included) or in relation to spousal maintenance provisions (e.g., a significant change in financial circumstances making the order no longer appropriate).
  • Flexibility & Certainty: Offers good certainty once made. Less flexible to change than a BFA might appear, as variations usually require a fresh application to the Court and demonstrating a significant change in circumstances or mutual agreement leading to new consent orders.
  • Cost: Generally, if agreement is reached, the process of applying for Consent Orders can be more cost-effective than negotiating and drafting a BFA with two sets of lawyers, or proceeding to a contested trial.

Binding Financial Agreements (BFAs)

  • What are they? Private contracts between parties that can oust the jurisdiction of the Court to deal with financial matters, provided specific strict requirements are met. Also known as “prenuptial agreements” (if made before marriage), “postnuptial agreements” (if made during marriage), or agreements made during or after a de facto relationship or after separation/divorce.
  • Court Involvement & Scrutiny:
    • Minimal to none at the time of signing. BFAs are not typically filed with the Court when made (unless enforcement or setting aside is sought later).
    • The Court does not review a BFA for fairness (“just and equitable”) at the time it is made. The focus is on whether the strict legal requirements for its validity have been met.
  • Legal Basis: Specific provisions in the Family Law Act 1975 (e.g., Part VIIIA for marriages, Part VIIIAB Division 4 for de facto relationships).
  • Scope:
    1. Division of property and liabilities.
    2. Spousal maintenance (can be excluded or included).
    3. Superannuation splitting (though this often needs separate mechanisms or orders for implementation).
    4. Cannot include parenting matters.
  • Formal Requirements:
    • Extremely strict and complex. Failure to comply precisely can render the BFA not binding.
    • Must be in writing and signed by all parties.
    • Before signing, each party must have received independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of making the agreement.
    • Each party must be provided with a signed statement from their lawyer confirming this advice was given.
    • A copy of the lawyer’s statement must be given to the other party or their lawyer.
    • The agreement must not be terminated, and (if made before divorce) must contain a separation declaration if seeking to finalise property division after divorce.
  • When Can They Be Made?
    • Before a marriage or de facto relationship (s90B, s90UB).
    • During a marriage or de facto relationship (s90C, s90UC).
    • After divorce or the breakdown of a de facto relationship (s90D, s90UD).
  • Enforceability: If validly made, they are binding and enforceable as a contract. Enforcement actions can be taken in court.
  • Grounds for Setting Aside:
    • Despite being “binding,” BFAs can be set aside by a court on various grounds, which are more extensive than for Consent Orders. These include:
      • Fraud (including non-disclosure of a material matter).
      • If the agreement was made for the purpose of defrauding or defeating creditors.
      • If the agreement is void, voidable, or unenforceable as a contract (e.g., duress, undue influence, unconscionable conduct).
      • If circumstances have changed since the agreement was made that make it impracticable for the agreement, or parts of it, to be carried out.
      • A material change in circumstances relating to the care of a child of the relationship, making it unjust if the BFA is not set aside.
      • One party engaged in unconscionable conduct when making the agreement.
      • Issues with superannuation splitting.
  • Flexibility & Certainty: Aims to provide certainty and a “clean break” by ousting court jurisdiction. However, the complexity of the requirements and the various grounds for setting them aside mean they can sometimes be less certain than Consent Orders if not impeccably drafted and executed.
  • Cost: Can be expensive to draft and finalise due to the mandatory requirement for independent legal advice for both parties and the detailed work involved in ensuring compliance with strict legal formalities.

Key Differences Summarised:

Feature

Consent Orders

Binding Financial Agreements (BFAs)

Court Approval

Yes, reviewed for fairness (“just & equitable”).

No, not reviewed for fairness at time of signing.

Independent Legal Advice

Strongly recommended, but not strictly mandatory for validity of the order itself.

Strictly mandatory for each party for validity.

Grounds to Set Aside

More limited.

More extensive.

Scope

Property, spousal maintenance, super, parenting.

Property, spousal maintenance, super. No parenting.

“Safety Net”

Court oversight provides a fairness check.

Relies on strict adherence to legal formalities.

Cost to Create

Potentially less if a straightforward agreement.

Often more expensive due to advice requirements.

Primary Focus

Achieving a just and equitable outcome via court sanctions.

Achieving contractual certainty by ousting court jurisdiction.

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Which is Better?

Neither is inherently “better”; it depends entirely on the specific circumstances, the complexity of the financial situation, the level of trust between parties, and the desired level of certainty and court involvement.

  • Consent Orders are often preferred when parties have reached an amicable agreement and want the reassurance of court approval regarding fairness, or when parenting orders need to be included with financial orders.
  • BFAs may be considered when parties want to keep their financial affairs entirely private from the court at the time of agreement, wish to explicitly oust court jurisdiction, or are entering into agreements before or during a relationship to protect specific assets, provided they are willing to meet the strict legal requirements and associated costs.

Given the complexities, it is crucial to obtain independent legal advice from a specialist family lawyer to determine which option is most appropriate for your individual situation. When formalising agreements about property, finances, and sometimes spousal maintenance after a relationship breakdown in Australia, the two main legal pathways are Consent Orders and Binding Financial Agreements (BFAs). They have distinct features, requirements, and implications. Here’s a comparison:

Feature

Consent Orders

Binding Financial Agreement (BFA)

Basic Definition

A written agreement approved by the Federal Circuit and Family Court of Australia (FCFCOA) and made into legally binding court orders.

A private contract between two or more people made under the Family Law Act 1975 that details how their property, financial resources, and spousal maintenance will be dealt with.

Court Involvement & Approval

Required. Must be submitted to the Court. A Registrar or Judge reviews them to ensure they are “just and equitable” (for property) or “proper” (for spousal maintenance) before making them into orders.

Not required to make it. BFAs are private agreements and do not need court approval to come into effect. The court does not assess the fairness of a BFA at the time it is made.

Scope of Matters Covered

Can cover: Property & financial settlement, Superannuation splitting, Spousal maintenance, and Parenting arrangements.

Can cover: Property & financial settlement, Superannuation splitting, and Spousal maintenance. Cannot make legally binding arrangements for children (these require Parenting Plans or Parenting Orders).

Independent Legal Advice

Highly recommended but not strictly mandatory for the Court to make the orders (though the Court will note if advice was received).

Strictly mandatory. Both parties must receive independent legal advice from different lawyers before signing the BFA, and each lawyer must provide a signed certificate. Failure to comply makes the BFA non-binding.

Fairness Standard

Must be “just and equitable” (property) or “proper” (spousal maintenance) in the eyes of the Court. The Court ensures a degree of fairness.

No requirement to be “just and equitable” at the time of signing. Parties can agree to terms that a court might not consider fair or might not order.

Enforceability

Enforceable as an order of the Court. Clear processes exist for enforcement if breached (e.g., contravention applications).

Enforceable as a contract. If breached, one party may need to sue the other in court to enforce the terms, which can be more complex.

Grounds for Setting Aside

Can be set aside in limited circumstances, e.g., fraud, non-disclosure of a material matter, duress, impracticability, a significant change in circumstances relating to children causing hardship. Generally considered more robust.

Can be set aside on specific grounds listed in the Family Law Act 1975 (e.g., fraud, non-disclosure, duress, unconscionable conduct, failure to comply with legal advice requirements, impracticability, material change in circumstances regarding children causing hardship). Historically, BFAs have faced more challenges, though laws aim to improve their certainty.

Timing (When Made)

Typically made after separation to finalise arrangements. Time limits apply for applications after divorce (12 months) or de facto separation (2 years).

Can be made before a relationship (prenuptial), during a relationship, or after separation/divorce. Can be used to oust the court’s jurisdiction if made correctly.

Privacy

Filed with the Court, forming part of a court record (though not generally accessible to the public without specific reason).

Private documents between the parties. Not filed with the Court unless they become the subject of a legal dispute.

Cost

May involve court filing fees. Legal fees for drafting and negotiation can vary. If straightforward and agreed, can be less expensive than BFAs.

No court filing fees to make the agreement. However, the mandatory independent legal advice for both parties and potentially more complex drafting often result in higher upfront legal costs.

Superannuation Splitting

Can effectively deal with superannuation splitting through specific orders.

Can effectively deal with superannuation splitting if specific requirements are met.

Parenting Matters

Can include legally binding parenting orders.

Cannot include legally binding parenting arrangements. These must be done via a Parenting Plan or Parenting Orders.

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When Might You Choose One Over the Other?

Consent Orders may be preferred if:

  • You want the reassurance of court oversight and approval that the agreement is “just and equitable.”
  • You need to include legally binding parenting arrangements alongside financial matters.
  • You prefer a generally more robust and less easily challenged mechanism for finalising your affairs.
  • The agreement is relatively straightforward, and parties are amicable.
  • Cost is a significant factor, and the matter is simple (though legal advice is still recommended).

A Binding Financial Agreement (BFA) may be considered if:

  • You want to make an agreement before or during a relationship (e.g., a prenuptial agreement).
  • You want to keep the terms of your agreement entirely private and out of the court system (unless a dispute arises later).
  • You and your partner agree to terms that might not strictly meet the “just and equitable” criteria a court would impose (e.g., protecting specific assets or a different percentage split for particular reasons).
  • You are outside the time limits for applying for Consent Orders and need a mechanism to finalise property matters (though obtaining leave from the court for Consent Orders might still be an option).

Key Considerations:

  • Complexity and Risk: BFAs are complex legal documents with strict technical requirements. An error in drafting or the advice process can render a BFA invalid.
  • Full Disclosure: Both processes require full and frank disclosure of all financial circumstances. Failure to do so can be grounds to set aside either Consent Orders or a BFA.
  • Legal Advice: Regardless of the path chosen, obtaining thorough independent legal advice is crucial to understand your rights, obligations, and the implications of the agreement you are entering into. This is highly recommended for Consent Orders and absolutely mandatory for BFAs.

The choice between Consent Orders and a BFA depends heavily on your individual circumstances, the complexity of your affairs, the level of agreement with your former partner, and your priorities regarding court oversight, privacy, and certainty.

Consent orders – all you need to know

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Consent Orders – What is it? A consent order is essentially a court order for family law matters, be it parenting arrangements or financial settlement (or both), entered into by private agreement between the parties and sealed by the court. What this means is that rather than two people arguing their issues before a judge […]