Consent Orders

A consent order is essentially a court order for family law matters, be it parenting arrangements or financial settlement (or both), that is 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 and allowing that judge to make a decision as to what happens to them, those people make an agreement with which they are both satisfied, and apply for a consent order to reflect their wishes. It is not only a quicker and more cost effective way to resolve issues at separation, but it is more likely to see a better outcome for all involved.

By its very name, a consent order is indeed an order made by the consent of the parties entering into it. This means that the people involved have entered into their agreement freely and voluntarily and consent to the order being made. For this reason, the court is usually inclined to make the orders for which parties have applied, on the basis that the parties themselves have considered their agreement to be just and equitable, and/or in the best interests of their child or children.

A consent order does not need to be drafted by a solicitor. The Family Court of Australia website provides free DIY kits to assist people to make these applications themselves. Many people opt to have a solicitor do the application, however, as they can ensure that the application is compliant, truly reflects the wishes of the parties, and has the expected legal effect and practical consequences desired. We are regularly approached by separating couples who have filed an application with the court and it has been dismissed. The court will not explain why it has been dismissed, but it is often due to lack of disclosure in the application itself, or most commonly, poorly drafted orders in the Minute of Consent Order. As much as the system attempts to be accessible to self-represented parties, solicitors have endured many years of study and practical experience to be able to draft these orders, and their assistance in these matters can be invaluable.

At Kate Austin Family Law we offer a low cost fixed fee consent order service, so as to make this assistance more accessible to those who need it. We are highly experienced and can ensure that your orders not only see you with the outcome you want, but cover all the things you haven’t even thought of, with our documents being drafted and filed in a timely manner.

FIVE GOOD REASONS TO GET CONSENT ORDERS: –

So you’ve reached an agreement for your property settlement, or in relation to the future care arrangements for your children.  You know you could get it formalised, but that’d mean getting a lawyer involved, and that’ll cost money.  It’s taken a while to get to an agreement with your ex, you’re busy and you just don’t want to think about it anymore.

There’s a few things that you might not have thought of, but which might make you give this decision a bit of further thought:-

1. If you’re proposing to transfer the house from joint names to just one party’s names, did you know that there are stamp duty implications?  If you try to do this, the Office of State Revenue will charge you stamp duty on half the value of the property, being the half that’s going from one person to the other.  If your house is worth $500,000.00, that’s going to cost you about $8,750.00.  If you have your agreement formalised by way of consent orders, you get an exemption from the payment of stamp duty.  If you come to us, we’ll charge you $990.00 to draft up all the documents you need to get consent orders made without going to court.  That’s a pretty big difference.

1. If you’re proposing to split up one party’s superannuation, so that some of one party’s super goes into the other party’s account, you can’t just agree to that and ask the fund to sort it out.  They’ll want to see a court order which sets out how the superannuation split will be done, and in fact, they have to consent to that order being made.  There’s no point reaching an agreement about something like this if you then find you can’t get the super fund to implement it for you.  If you have your agreement about a superannuation split formalised by way of consent orders, the fund will sort out the split with no problems.  If you come to us, we’ll charge you $880.00 to get the super fund’s consent, and then draft up all the documents you’ll need to get consent orders made without going to court.  You’ve done the hard work by getting to an agreement.  Don’t let something like this get in the way of getting everything finalised smoothly and promptly.

1. You’ve spent ages to-ing and fro-ing and you’ve finally been able to get to an agreement with your ex that you can both live with.  That’s the hardest part done.  If you don’t formalise your agreement, there is little to stop one of you coming back, maybe in a few years’ time and seeking a formalised property settlement.  The whole thing has to get reopened.  Any assets you’ve acquired post-separation are in the property pool and available for distribution between you.  Your previous agreement might be relevant, but there might be reasons why the court is happy to revisit everything that you thought already finalised your property settlement.  Formalising your property settlement finalises it.  Everyone knows where they stand.  Everyone gets to get on with their lives without wondering if assets they accumulate after separation will be divided again later on.  We can formalise, and finalise your property settlement for $990.00.  It’s worth considering for your peace of mind.

1. You and your ex have worked hard and spent more hours than you remember working out an arrangement that you think will work well for your kids into the future.  Maybe you went to mediation and sorted it out that way.  You’re pretty amicable and you don’t believe that formalising your agreement is really necessary.  But what if things change?  What if you’re the one doing all the drop off’s and pick up’s and then your former partner goes and moves ten suburbs away?  What if your former partner re-partners and all of a sudden, they want to change the weekends around so that your kids spend time with the new partner’s kids?  What if your ex wants to move away with the kids?  It’s great when things are amicable and you’re working together, but sometimes things get in the way of that.  If you’ve had your agreement formalised into consent orders, then any changes to the orders have to be negotiated.  You’re going to get a say in that.  One party can’t just unilaterally change the orders and the kids’ routine without consulting you, like they can if it’s an agreement.  We can formalise the future care arrangements for your kids for $880.00.  Yours or the kids’ circumstances might still change in the future.  But any changes made to the orders as a result are made with your input.

1. You’ve got your agreement and everything is going well.  You’ve divided up your property like you agreed you would and the kids are settling into the new routine.  What if something then arises that you didn’t think of?  What if a debt that you forgot about suddenly surfaces.  It’s in your name, but you both accumulated it.  Or you want to take the kids on an overseas holiday, but your agreement doesn’t cover that sort of thing.  When you get a lawyer to put together your agreement, they think of things like this.  They make sure that no assets or liabilities are left out or forgotten about.  They draw your attention to things that you might not have thought about, but which might arise down the track with your kids.  We can formalise an agreement for a property settlement or for the future care arrangements for your kids, all the while ensuring that nothing gets left behind or not considered.  We charge just $880.00 to draw up consent orders for either a property settlement or for future parenting arrangements (or $1,320.00 for both).  We think it’s the best price going around, but we know it’s a lot less expensive than having to get a lawyer involved if you’re having trouble trying to sort out things like this down the track.

So if this has given you a reason to re-think your decision not to formalise your agreement, you might want to take the next step and give us a call.  We can talk you through the process, confirm the price is what we’ve said it’s going to be here, and get you started.  If you’d like more information about our fixed fees, just click on the link.

THE DIFFERENCE BETWEEN CONSENT ORDERS AND A BINDING FINANCIAL AGREEMENT

Like Consent orders, Binding Financial Agreements set out how property and financial resources are to be divided upon the breakdown of the relationship.  The advantage of a BFA is that it can be entered into prior to marriage, during a marriage, or after a divorce order is made, unlike consent orders which can only be entered into following separation.

The disadvantages however are as follows:-

• As the BFA is not required to be submitted to the Court for approval, if one party wishes to contest it at a later date, there is greater potential for the Court to declare the Agreement non-binding, or to set it aside.

• There are strict rules associated with Binding Financial Agreements, non-compliance with which can render the agreement unenforceable.

• The approach of the courts to the relevant provisions of the Family Law Act which govern BFA’s and how they might be varied or set aside, remains in a state of evolution. There are areas where clarification will only be known by ultimate rulings from the Full Court of the Family Court or the High Court of Australia.

• There is the continuing possibility of further amendments to the legislation governing Financial Agreements. Again, the form and effect of any such future change is not presently known and is impossible to predict.

It is accordingly the practice of our firm not to recommend Binding Financial Agreements where Consent Orders can be prepared as an alternative.

HOW DOES THE PROCESS WORK AT KATE AUSTIN FAMILY LAWYERS?

There are two main things that we will need from you before we can progress your matter:-

1. We require funds in trust, including the filing fee required by the Court, to be deposited into our trust account.

1. Please also complete this intake form and return it to us.

Once these steps have been completed, we will contact you to schedule a convenient time for a 20 to 30 minute telephone conference during which we will obtain some further information from you, as well as the precise details of the agreement that you’ve reached.

Once the conference has taken place, we will generally have all of the information that we need in order to prepare the documents that the court will require in order to make consent orders for you.

We will then put together two documents on your behalf, which are:-

1. Draft Consent Orders – This document sets out the agreement that you’ve reached along with the mechanics of how each order will be implemented where applicable.

1. Application for Consent Orders – This document sets out for the Court relevant background information designed to assist the Court in verifying that the Orders proposed to be made are fair and equitable.  For a property settlement, all of your assets and liabilities are set out, even if they don’t form part of the agreement.  As well, the Application sets out in mathematical terms what the orders say in words and sets out the proposed percentage split.  For children’s matters, the Application provides background information in relation to the children.

Both these documents must be filed with the Court.  They must meet with the approval of a judge, who will then, assuming the proposed orders are found to be just and equitable, make legally binding court orders in accordance with the agreement that you have reached.

Once drafted, both documents are forwarded to you, so you can make sure all the details are correct.  You will then need to print off, sign and scan back to us by email signed copies of:-

1. The draft consent orders.  Each page of the draft consent orders must be signed by each of you.

1. The Statement of Truth of Applicant and Statement of Trust of Respondent.  The Applicant’s statement is attached to the draft Application for Consent Orders.  The Respondent’s statement will be sent separately.

Once the scanned and signed documents have been returned to us by email we will file all the documents.

It usually takes around two to four weeks for court orders to be made in accordance with the agreement that you’ve reached.  You are not required to attend court.  The case is considered by a Judge in Chambers.

Once the orders have been made, a sealed copy of the Orders typically becomes available via the court portal.  We will obtain a sealed copy of the Orders that have been made and forward them to you.

The process of taking instructions from you, putting together the draft documents, having them filed and then having orders made in accordance with the agreement that has been reached usually takes around one month.

Sometimes the matter doesn’t conclude at this point.  Commonly, one party is transferring their interest in a property to the other and there is a refinance process that must now take place.  We are able to assist with the implementation of orders, and arrange the refinance on your behalf for an additional fixed fee.  This process generally takes around six weeks to complete.

If you have any other questions, you might like to have a look at our FAQ’s page on fixed fee consent orders.  To find out more information about who we are and what we do, click on this about us link.

PREPARING FOR YOUR TELECONFERENCE WITH US

In preparation for our conference you will need to provide to us the following details:-

1. The date you got together, the date you married, if applicable, the date you separated and the date you divorced, if applicable.

1. Details of all of your assets and all of your liabilities, and their approximate values.

1. The BSB and account details for all accounts that you and your former partner have an interest in, either separately or together.

1. The make, model and registration of any cars that you own.

As well, we will also require the following documents from you before the telephone conference can go ahead:-

1. An up to date superannuation statement.
2. A Council Rates notice, showing the lot and DP for any real estate owned by you.

OBTAINING FIXED FEE CONSENT ORDERS WITH KATE AUSTIN FAMILY LAWYERS – WHAT’S INCLUDED AND WHAT’S NOT.

The fixed fee consent orders process that we provide is designed to assist parties who might feel as though in general, they don’t really need orders, but they’re getting them for specific reasons.  Some reasons why parties who are separating amiably might want court orders are:-

• To avoid the stamp duty implications associated with having a property transferred from joint names to one party’s name;

• To ensure that the financial relationship between the parties is at an end and there is no scope for either party to pursue a further property settlement at some future date; or

• To ensure certainty for the future care arrangements for their children.

At Kate Austin Family Lawyers, we do provide the full range of family law services, however the specific option that you have chosen here is geared towards formalising agreements that have already been reached in a simple, quick and easy way for a specific reason.

What the fixed fee includes:-

• Taking instructions from you, typically by way of a telephone conference, in relation to the agreement you’ve reached, and filling in any gaps in relation to matters that you might not have thought of.

• In order for the court to make orders in accordance with the agreement that you’ve reached, we then prepare two documents:-

• Draft Consent orders – this document sets out the agreement you’ve reached in a format that is legally binding and enforceable and in a way that the court will accept.

• An Application for Consent Orders – For property settlement matters, this document sets out all of the assets and liabilities of the parties, and then sets out in mathematical terms what the draft consent orders say in words.  It also provides the court with other information about the parties’ relationship and sets out the proposed percentage split of the asset pool.  For children’s matters, details about the parties’ relationship and the arrangements for the children are set out.

We get all the information we need to prepare these two documents from you and then we prepare the documents for you to review.

• We send the completed documents to you for execution and once you return them to us, we file them with the Court.

• Obtaining court orders in accordance with the agreement you’ve reached, and then forwarding them to you.

What the fixed fee does not include:-

• The fixed fee does not include negotiating an agreement between you and your former partner.  We’re happy to help you negotiate an agreement, if you don’t already have one, however this doesn’t fall within the scope of our consent orders fixed fee, as this works on the basis that you and your former partner have already reached an agreement.

• Subject to the comments below, the fixed fee does not include the provision of independent legal advice.  Again, we’re happy to do this, if you’d like independent advice on the agreement you’ve reached, however it doesn’t fall within the scope of the consent orders fixed fee.  Providing independent legal advice requires us to obtain a detailed history of your relationship, dating back to prior to its commencement and dating forward beyond the date of separation and projecting into the future.  This takes considerable extra time.

On occasion, the agreement you’ve reached may, in our view, be something that the court is unlikely to make orders in accordance with.  This doesn’t generally happen, but can happen if the agreement, on the face of it, seems heavily skewed in favour of one party.  In such a case, we will advise you about the best way of presenting the agreement so as to ensure that wherever possible, the court will make orders in accordance with the agreement reached, if there are valid reasons why it might be skewed in favour of one party.  We will also advise you if we think that orders are unlikely to be made in accordance with your agreement, so that you have the opportunity to withdraw your instructions, or to go back to your former partner and re-negotiate terms that are more likely to be acceptable.

• The fixed fee does not include the implementation of the orders once made.  Most commonly, property settlement orders make provision for the property owned by the parties to be transferred from joint names to one party’s name only, as having consent orders made enables the parties to avoid the stamp duty implications that otherwise arise when properties are transferred.  We are happy to undertake this process for you for a fixed fee, however this fee is separate and additional to the fixed fee associated with the preparation of consent orders for you.

INSTRUCTIONS ON SIGNING THE DOCUMENTS TO BE FILED WITH THE COURT

Following the preparation of the documents, we send them to you for your review and consideration. The documents include the following:-

1. Draft Application for Consent Orders including Statement of Truth of Applicant;
2. Draft Consent Orders;
3. Statement of Truth of Respondent.

As well, we include a link to the Family Court brochure entitled “Marriages, Families and Separation”, which we are required to provide to you.

From here:-

• If there are any changes required to either of these documents, please click on this link, which will take you to a page where the changes can be set out by reference to the question in the Application, or the clause number in the draft Orders.  Once completed, please email this document back to this address.

• If (or once) no further changes are required, we ask that you print off all three documents and follow the following instructions for their execution:-

1. Apart from the last page, the draft Application for Consent Orders does NOT need to be signed.  Please just keep a copy for your records.

8. On the last page of the Application for Consent Orders, you will find a page entitled “Statement of Truth of Applicant”.  This needs to be signed and dated at the bottom by the Applicant.  The Applicant will also need to tick all of the boxes that apply.  For example, if parenting orders are being sought, tick box 8. if financial orders are being made, tick box 9, as per the below.

8. For parenting orders – I have read and considered sections 60B, 60CA, 60CC, 60CH, 60CI, 61DA, 64B, 65DAA, 67Z and 67ZBA of the Family Law Act.
9. For financial orders – I have read and considered in the case of a marriage section 72, section 79, and subsection 75(2) and where there is a superannuation interest, Part VIIIB of the Family Law Act and in the case of a de facto relationship section 90SF, section 90SM and where there is a superannuation interest, Part VIIIB of the Family Law Act.

If you have not read and considered the relevant sections of the Family Law Act, please click on this link, which will take you to the Family Law Act, 1975.

1. The Statement of Truth of Respondent must be signed and dated at the bottom by the Respondent.  Again, the Respondent will also need to tick all of the boxes that apply.

1. Both parties must then sign and date each and every page of the draft consent orders at the bottom of each page, wherever there is space.  Both parties must sign the same document. You can however have one party sign it, and then email it to the other for signature, just as long as there is one document submitted with both parties’ signatures on it.

For your reference, here is a link to the sections of the Family Law Act to which the Statement of Truth makes reference, if you are not already familiar with these provisions.

Once you have signed the draft consent orders, and the two Statements of Truth, you need to scan and email the signed documents back to us.

We will then collate all the documentation and submit it to the Family Court for the consideration of a Registrar in Chambers.