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How does a Consent Order differ from a Court Order?

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What is the difference between a Consent Order and a Court Order 

When legal disputes arise, particularly in family law or civil litigation, the terminology can be confusing. Clients often ask us: “What is the difference between a consent order and a court order?”

While both carry the full weight of the law, the path you take to reach them is very different. Understanding this distinction can save you significant time, stress, and legal costs.

Does a Consent Order differ from a court order?

When legal disputes arise, particularly in family law or civil litigation, the terminology can be confusing. Clients often ask us: “What is the difference between a consent order and a court order?”

While both carry the full weight of the law, the path you take to reach them is very different. Understanding this distinction can save you significant time, stress, and legal costs.

Consent Orders vs. Court Orders: The Core Difference

The simplest way to distinguish the two is by looking at who made the decision.

  • A Consent Order is a written agreement reached between parties (usually through negotiation or mediation) that is then submitted to the Court for approval. It is an “agreement made legal.”

     
     

  • A Court Order (specifically a “judicial order”) is a decision imposed upon the parties by a Judge or Magistrate after a contested hearing or trial. It is a “decision made for you.”

     

Crucially, once a Consent Order is signed and sealed by the Court, it has the exact same legal effect as an order made by a Judge. Both are legally binding, and breaching either can result in serious penalties, including fines or even imprisonment.

 
 

When are they used?

1. Consent Orders: The Amicable Path

Consent orders are the “gold standard” for parties who are able to communicate or reach a compromise. They are most commonly used in:

 

  • Property Settlements: Dividing real estate, superannuation, and bank accounts.

     

  • Parenting Arrangements: Formalising who a child lives with and how much time they spend with each parent.

     

  • Spousal Maintenance: Agreeing on ongoing financial support.

     

Why choose this? You retain control. You and your former partner decide what works for your family’s unique schedule rather than leaving it to a Judge who only knows your life through filed affidavits.

 

2. Court Orders: The Path of Last Resort

When negotiations break down, or if there are urgent risks (such as family violence or the risk of a child being removed from the jurisdiction), you must apply for the Court to intervene.

 

  • Interim Orders: Temporary orders made to manage the situation until a final trial can be held.

  • Final Orders: Issued by a Judge at the end of a trial if the parties still haven’t agreed.

Why choose this? This path is necessary when one party is being unreasonable, non-disclosing of assets, or where there is a significant power imbalance that makes fair negotiation impossible.

Relevant Legislation

In New South Wales, the legislation governing these orders depends on the nature of your matter.

Family Law Matters

For married or de facto couples, the

Family Law Act 1975  (Cth) is the primary legislation.

 

  • Section 79: Deals with property settlement orders (and consent orders).

  • Section 60CC: Outlines the “best interests of the child,” which the Court must consider before approving any parenting consent order.

     

  • Section 79A & 90SN: Set out the very limited circumstances in which a final order can be varied or set aside (such as fraud or a miscarriage of justice).

     

Civil and General Litigation

In civil disputes (like debt recovery or contract breaches), the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules (UCPR) 2005 apply.

 

  • UCPR Rule 36.1A: Specifically allows the Court to give judgment or make an order “in the terms of an agreement between parties.”

     

Key Benefits of Consent Orders

If you are able to reach an agreement, Consent Orders offer several distinct advantages over a contested Court battle:

  1. Cost-Effectiveness: You avoid the astronomical costs of a multi-day trial.

     

  2. Speed: Most consent orders are processed by a Registrar within 4–8 weeks, whereas a trial can take 12–24 months to reach a final hearing.

     

  3. Finality: It provides a clean break. Without formal orders, a former spouse could potentially make a claim on your assets many years down the track.

  4. Stamp Duty Exemptions: In NSW, transferring property under a formal Court Order (including a Consent Order) often qualifies for significant stamp duty exemptions.

     

How We Can Help

 

While Consent Orders are based on your agreement, the Court is not a “rubber stamp.” A Registrar will only approve the orders if they are “just and equitable” (for property) or in the “best interests of the child” (for parenting).

 

Poorly drafted orders can be rejected by the Court or, worse, contain loopholes that lead to future conflict. Our team specialises in drafting precise, enforceable orders that protect your future.

If you breach a Consent Order, what happens?

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  If you breach a Consent Order, what happens? Breach of a court Order has the same consequences whether it was made by consent or after a contested hearing. Most often, the court will want to see the Order implemented and it can sometimes be the case that no other Orders that might otherwise be […]

Can parties change consent orders?

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      Consent Orders can be changed with the consent of the other party. Therefore, we usually suggest people speak with the other party about their willingness to change the Consent Orders before proceeding.  A court application can be made to obtain fresh Consent Orders or Orders that vary the current Orders if both […]

Are consent orders legally binding

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Are Consent Orders legally Binding

Are Consent Orders Legally Binding with the Australian Family Court 

Yes, Consent Orders are legally binding when they are approved by the Federal Circuit and Family Court of Australia.

Even though they are agreements reached by the parties themselves, once 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. Consent Orders are legally binding in every sense of the word.

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:

  1. A belief on reasonable grounds that the action was necessary to protect the health or safety of a person (including a child).
  2. Not understanding the obligations imposed by the order, and the Court considers the person ought to be excused.
  3. 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:

  1. 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.

  1. Documenting the Breach:

  • Maintain thorough records of all reported breaches and gather any supporting evidence.

  1. 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.
    •  

  1. 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.
  •  

  1. 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):

Here are some possible consequences 

  • 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)?

Here are some possible Consequences 

  • 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.