About Rachel Stubbs

Rachel Stubbs is the Principal of Kate Austin Family Lawyers, where she leads a practice dedicated to providing a more compassionate, efficient, and cost-effective alternative to the traditional adversarial legal system. With over 25 years of experience in family law, Rachel has transitioned her focus from courtroom litigation to specializing in Consent Orders and amicable property settlements.

Professional Background & Philosophy
Rachel’s career is defined by a commitment to minimizing the emotional and financial toll of separation, particularly on children. Before establishing her practice in Brisbane, she founded and led a successful multi-office firm in New South Wales. Despite that success, she became a vocal critic of the traditional family law system, believing its "winner-take-all" nature often encourages bitterness rather than resolution.

In response, she founded Kate Austin Family Lawyers with a strict non-conflict policy. Rachel exclusively represents clients who have already reached an agreement and require expert legal documentation to make those agreements legally binding. Her approach centers on:

Fixed-Fee Transparency: Providing certainty in legal costs.

Rapid Turnaround: Drafting complex legal documents typically within 24 hours.

Neutrality: Acting as a specialist who documents agreements without interfering in the parties' negotiated terms.

Expertise & Qualifications
Rachel is a dually Accredited Specialist in Family Law in both New South Wales and Queensland—a distinction held by only a small percentage of practitioners. Her credentials include:

Specialist Accreditation (Family Law): Law Society of NSW (2007) and Law Society of QLD (2017).

Independent Children’s Lawyer (ICL): Trained through the National Training Program to represent the best interests of children in complex cases.

Graduate Diploma of Family Dispute Resolution: Focused on non-litigious mediation and resolution strategies.

High Court Registration: Registered to practice in any Federal Court in Australia.

Personal Interests
Outside of the office, Rachel is an accomplished endurance athlete. She is a competitive triathlete and cyclist, regularly participating in IRONMAN 70.3 events. Her determination in the legal field is mirrored in her personal life; she has long-held aspirations to cycle across America, fueled by an adventurous spirit and a drive for personal growth.

Entries by Rachel Stubbs

How does a Consent Order differ from a Court Order?

/in

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?

/in

  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?

/in

      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

/in

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.

How much will it cost me to get a Consent Order?

/in

 

An article from Kate Austin Family Lawyers - Fixed fee Consent Orders

How much will it cost me to get a Consent Order?

Most lawyers now charge a fixed fee for preparing consent orders. The fixed fee they charge, however, varies widely. It is quite common for lawyers to charge a fixed fee if there is some level of negotiation between the parties prior to the Consent Orders being signed off, and the fees will include the cost of independent legal advice as well. Lawyers often charge a fixed fee, given the possibility that the matter may become protracted and take some months to resolve. Legal fees associated with preparing Consent Orders are typically in the vicinity of $7000-$10000. The consent orders cost includes not only legal fees but also filing fees and any additional court fees that may apply, such as those for superannuation splits or valuations. The applicant, who is the person initiating the application for consent orders, is responsible for submitting the required documents to the Family Court.

To apply for consent orders, both parties (you and your former partner) must reach an agreement on the terms, which are then formalised in a written document and submitted to the Family Court.

Consent Orders generally cost much less to prepare than a binding financial agreement, particularly as both parties must obtain independent legal advice in relation to a binding financial agreement, which can increase the cost considerably. Binding Financial Agreements can also be much more comprehensive than Consent Orders, which result in additional costs. In comparison, divorce is a separate legal process with its own filing fees and procedures, and requires a different application to the court. Combining property and parenting orders in one application typically increases the overall consent orders cost compared to pursuing either one alone.

Introduction to Consent Orders

Consent Orders are a fundamental part of the family law system in Australia, providing a way for parties to formalize their agreements regarding property settlement and parenting arrangements without the need to attend a defended hearing in the family court. Under the Family Law Act, Consent Orders can be made by the Federal Circuit and Family Court of Australia, making the agreement legally binding and enforceable. This process allows families to resolve their matters efficiently, avoiding the stress and expense of a full court hearing. Understanding the legal process, including the role of court fees and the involvement of a family lawyer, is essential for anyone considering Consent Orders. The family court of Australia oversees the process, ensuring that the agreement is in the best interests of all parties, especially children, and that the settlement is fair and reasonable. By familiarising yourself with the steps involved, the fees payable, and the importance of legal advice, you can navigate the process with greater confidence and clarity.

Understanding Court Fees

When filing for Consent Orders, it’s important to be aware of the court fees involved. The current filing fee for an application for Consent Orders is $205; the filing fee can be paid online through the Federal Circuit and Family Court of Australia’s payment system. In some cases, additional fees such as hearing fees or setting down fees may apply; these can be applied online, depending on the complexity of the matter and whether a hearing is required. However, many applications for Consent Orders are determined without the need for a court appearance, keeping costs lower. Applicants who hold certain government concession cards, such as a Health Care Card or Pensioner Concession Card, may be eligible for a reduced fee or even a fee exemption. If you can demonstrate financial hardship, you may also qualify for a reduced fee or exemption from paying court fees. The federal circuit and family court have clear guidelines on eligibility for fee reductions and exemptions, ensuring that the process remains accessible to all parties regardless of their financial circumstances.

Role of a Family Lawyer

A family lawyer is an invaluable resource when it comes to preparing and filing Consent Orders. Their expertise in family law and the Family Law Act ensures that your agreement is drafted correctly and meets all legal requirements. A family lawyer can guide you through the process, from taking instructions and preparing the necessary documents—such as the Application for Consent Orders and the Draft Consent Orders—to filing them with the court. They can also provide advice on whether the proposed agreement is fair and in your best interests, helping you avoid common mistakes that could delay or complicate your matter. Many family lawyers offer a fixed fee for Consent Orders services, giving you certainty about the cost, while others may charge an hourly rate depending on the complexity of your case. Engaging a family lawyer can provide peace of mind, knowing that your legal process is handled professionally and efficiently.

Asset Pool Considerations

One of the most important aspects of preparing Consent Orders is accurately identifying and valuing the asset pool. The asset pool includes all assets, liabilities, and financial resources of both parties, such as real estate, superannuation, investments, and other significant assets. Full disclosure is essential to ensure that the property settlement is fair and reasonable for everyone involved. A family lawyer can assist in gathering and valuing these assets, helping to draft proposed orders that reflect the true financial position of both parties. This process is especially important when children are involved, as the best interests of the family must be considered in any agreement. By carefully considering the asset pool, parties can reach a settlement that provides clarity and security for the future.

Alternatives to Consent Orders

While Consent Orders are a popular way to formalise agreements in family law matters, there are alternative options available. A Binding Financial Agreement (BFA) is one such alternative, which can be entered into before, during, or after a marriage or de facto relationship. Unlike Consent Orders, BFAs are not approved by the court and must meet strict legal requirements to be enforceable. In some cases, if parties cannot reach an agreement, the family court may impose a court-ordered settlement after a defended hearing. Mediation and conciliation conferences are also available in limited circumstances, providing an opportunity for parties to resolve disputes with the assistance of a neutral third party. The Family Law Act and the Family Court Act outline the procedures and requirements for these alternatives, allowing parties to choose the option that best suits their circumstances. Whether you opt for Consent Orders, a Binding Financial Agreement, or another form of settlement, it’s important to seek legal advice to ensure your rights and interests are protected.

Kate Austin Family Lawyers provides a national service. Family Law is a federal jurisdiction so the law are uniform across the country. No matter where you are located we can assist. Sunshine Coast  Newcastle  Canberra Sydney  Melbourne 

This information is general in nature and cannot be interpreted as legal advice. Legal advice can only be provided by a qualified legal practitioner.