Consent Order FAQS
The purpose of this page is to answer as many common Consent Order FAQS as possible. Most people have never been through this process before. One of our primary jobs is to educate potential clients on how the process works and what needs to be done so that clients can have their Consent Orders approved. We recommend that you discuss your matter directly with our firm so we can address your concerns directly. We are a firm that prides itself on being very approachable.
Why do you charge less than other lawyers?
If you’ve reached an agreement, you’ve done all the hard work already. Drafting orders is what we do and we’re good at it. We get instructions from you about the agreement you’ve reached and we put it into a format that is legally binding and drafted so that the court will be happy with it. We pride ourselves on getting it right the first time, so we can get it done more efficiently than most.
What does the fixed fee include?
We take comprehensive instructions from you about the agreement that’s been reached. We then draft your agreement into a document called “Draft Consent Orders” which is based on a format that the court will accept. We also prepare another document called the “Application for Consent Orders”, which has to be filed with the court along with the draft orders. We then send them to you for approval. If you need any changes done, we’ll make them. If there is additional material that needs to go in, we’ll put that in. Please read on for further Consent Order FAQS.
There is provision in the fixed fee for the documents to be changed three times. We think we’ll get it right from our end the first time, but this allows you to change the agreement or modify it if you need to at no additional cost. Once you’re happy with the documents, we email them to you and give you instructions on how to sign them and how to file them.
Is there anything the fee doesn’t include?
So far as we are concerned, there is otherwise nothing else you need to pay beyond the fixed fee. That is our guarantee to you. There is a court filing fee that must be paid when you go to lodge the documents with the court. If you’ve got a health care card, you can get an exemption from the filing fee.
What if we’re close to reaching an agreement, but not quite there?
We can help you close any gaps that might be getting in the way of an agreement being reached but this would mean that we would be acting in the capacity of your solicitor and writing to the other party or their lawyer more formally to try to negotiate the outstanding issues. If the issues are more significant or complex, we can talk to you about perhaps organising a round table conference with the other party and their solicitor, as this is often a useful way of getting to an agreement if you’re otherwise reasonably amicable. We can fix fee these things for you to give you certainty about what they’ll cost.
More general Consent Order FAQS
What are Consent Orders?
When two people separate, they will usually want to make an agreement as to the division of their financial assets, as well as care arrangements for their children.
A Consent Order is made when two parties submit their proposed agreement to the Family Court of Australia and it is sealed by the Court to make it legally binding. It has the same legal effect as if the judge had decided the Order themselves, but without the time, expense and stress of you having to go through an entire court process.
Family Law Consent Orders are an effective and ideal method by which to finalise your financial ties to your ex-partner and allow you to move forward independently and with certainty.
Why do we need a Consent Order?
There is no legal requirement to have a Consent Order made following separation.
Some couples will make informal, private agreements as to the division of their assets, and the time they will each spend with their children. Although this may be a perfectly reasonable means by which some separating couples can achieve their desired outcomes, it does not protect any of the parties in a legal sense.
This means that either party can then make an application to the Court for orders other than what was previously agreed to, and there is no legal document preventing the Court from considering this application. A Consent Order is such a legal document and, with the exception of some very limited circumstances, will prevent either party from taking any further legal proceedings against the other in the future.
Can we do it ourselves?
The Family Court of Australia website provides a DIY Kit for Consent Orders. Simply go to Application for Consent Orders (do it yourself kit) for more information.
The benefit to having your Consent Order Application drawn up by a solicitor is that we have the expertise, experience and knowledge to ensure that all your financial and children’s issues are provided for and protected within the Order. We know how and what needs to be included to ensure that the Orders can be enforced and your matters effectively resolved.
A good example may be that the parties agree to transfer their family home from joint names, to the wife only. An Order which simply states that the parties agree to transfer the property does not cover the practical aspects of this and may fail to provide for a ‘backup plan’ if this cannot actually occur.
How long do the parties have to implement the orders? What if the husband refuses to sign the paperwork? What if the wife cannot refinance the mortgage into her own name?
These are the things we as solicitors think about and make sure to include in the orders we draft. Letting us do the hard work for you at a time when you have enough on your plate gives you peace of mind that your family and your interests are properly protected.
What can our Consent Orders include?
A Consent Order can provide for both financial matters and children’s care arrangements.
Children’s Orders can include things such as:
- Who the children will spend their time with, and when.
- Who has parental responsibility for the children.
- Whether children can travel overseas and any permission required from the other parent.
- The place and times for changeover of care.
- Expectations that both parents will be of good behavior and not speak badly about the other parent in front of the children.
Financial Orders can include things such as:
- Who gets to keep the house.
- What other assets each of you will retain, such as cars, furniture, jewellery etc.
- Whether you will receive from, or pay to, the other person any part of your superannuation.
- How debts will be resolved, whether they be paid out and finalised or taken on by one person only.
- Any cash payouts from one person to the other. This can occur when one person ‘buys out’ the other person’s share of a house or other property.
Although Children’s Orders are ongoing, Financial Orders will attempt to finalise the financial ties between the parties. This means that assets and liabilities need to be moved around between them to ensure that each party walks away with their share, and this can be achieved in many different ways.
What if we don’t agree on the Consent Orders?
A Consent Order is, by definition, an order that has been consented to by the parties.
If you are yet to reach an agreement, you have three options to consider:
- Discuss – Continue the discussion with your former partner. If you are in the same ‘ball park’ with regard to your expectations of property settlement or children’s care arrangements, you may just need a little more time. Once you are in full agreement, you are ready for a Consent Order.
- Negotiate – If you are a little further apart with what you are prepared to agree on, you may need to seek outside assistance. Whether this is attending mediation with a trained mediator, or each engaging a solicitor to negotiate on your behalf, you can still potentially reach agreement and finalise it by way of Consent Order. If you wish to discuss this further, please contact us.
- Go to Court – If your partner refuses to negotiate, or if your expectations are just too far apart, you may need to make an application to the Family Court to have them decide on your matter. It is not unusual for separating couples to disagree, in fact, it is in many instances one of the causes of their separation. So although going to Court is not a first preference for most, as it is often a costly and arduous process, it is sometimes the only way to resolve your matter.
As solicitors, we can assist you throughout every step of the process. If you have any questions or wish to discuss your options further, please do not hesitate to contact us!
Will the Court accept our Application?
If the Court reviews the Application and determines that the Order would not be ‘just and equitable’ to both parties, it can reject the Application.
Our fixed-fee service is based on taking your instructions and drafting documents in accordance with the agreement you’ve reached with a view to Consent Orders being made to that effect. Our role is to ensure that your documents are drafted to have legal certainty and to comply with the Court’s procedural requirements.
We do not advise you on your agreement. If the Court reviews your Order and believes it to be ‘just and equitable’ they will accept the Application and make the Order as you have requested.
If for any reason they do not believe it to be ‘just and equitable’, they may decline to make the Order that is sought. The Court will not provide you with a clear explanation as to why they have rejected your Application and you will need to go away and reconsider your agreement.
For this reason, if you’re not sure if the agreement you’ve reached is likely to be considered equitable, having regard to the history of your relationship, we would highly recommend arranging for an initial consultation with one of our family lawyers to review your agreement prior to requesting a Consent Order being drawn up. We offer initial consultations in person or by phone for a fee of $275.00 (inc. GST) and can review your proposal and advise on any issues we foresee, as well as guide you on the best path to take to ensure that your Order would be made. Once we’ve ironed out any problems, we can commence drafting the consent orders.
What if we want to change it after orders have been made?
The short answer is that you can’t. The idea is that the orders are final and neither party can just change their mind.
In children’s cases, you can possibly get the orders changed if you can show that there has been a significant change in circumstances since the Order was made.
In terms of financial orders, it is not generally possible to have them changed. The Orders are made based on the parties agreeing to the position of the property pool, and limited time frames to action the orders mean they are generally finalised shortly after the Order is made.
If one party was able to prove that they had been forced into agreeing to the Order and that they did not agree to it voluntarily, they could make an Application to the Court for different orders. However, it must be remembered that the Court would only accept the Consent Order if it were considered just and equitable. For this reason, even if you felt that you had been pressured into signing the Order, you would need to weigh up the cost of going to Court against how much more you could truly receive from the property pool if your fresh application is successful. For many people, the legal fees and stress of Court far outweighs the extra they may have been entitled to receive.
For parenting matters, changes are made more frequently. If one parent can demonstrate that there has been a significant change in circumstances and that new orders are required, the Court may consider this.
Again, it must be noted that if the parties are in agreement to vary the current orders, it may not be immediately necessary to have them changed by the Court. The effect of parenting orders by a Court are that they are enforceable by each party. We like to include provisions in our orders that care arrangements can be ‘as otherwise agreed’. This provides the flexibility that the parties can agree to change them as they see fit. So the only reason you would seek new orders would be if your situation had changed dramatically and the other parent refused to consider changing the arrangements with the children. This, however, would not be changing a Consent Order. It would be making an application to the Court to make new orders.
Do we have to be divorced first?
No. You can make a Consent Order as soon as you separate.
In fact, it is recommended you attend to this sooner rather than later. Once a divorce is granted, you have a time limit of 12 months to seek an Order for property settlement, but there is no time limit that applies prior to this occurring.
Many couples attend to resolving their property matters within the first 12 months following separation, so that they may sever their financial ties and have some certainty as to their financial position moving forward. Future care arrangements for children are typically considered immediately following separation, as both parties usually want some stability for their children as soon as they are no longer together.
If you have been separated for 12 months, we can assist you with applying for a divorce for less than $300.00, depending on your circumstances. Please contact us if you’d like to discuss this further or go to our Divorce quote page for an immediate fixed fee quote.