Sample Consent Orders
We have attempted to provide examples of orders that have been drafted and the potential errors that can occur. We have not attempted to provide a list of precedent orders because that are just to many possible variations.
Having practiced family law for 20 years, we know all the ins and outs. Many clients have questions about how Consent Orders and other financial agreements work in their particular situation. If you’d like to know how these agreements help you move on with life, get in touch and schedule a free, no-strings-attached chat.
Consent orders can be tricky things to write and that is why people usually engage a solicitor to do it. This doesn’t mean that you can’t write them yourself, but with low cost, fixed fee services now available, it is often worth having a solicitor do this for you, quickly and easily.
We sometimes have clients come to us with orders that have been rejected by the court, although they appeared to be legitimate looking orders. They had searched for ‘sample consent orders property settlement’ online, and found some piecemeal orders which looked legally sound, and put these together. Sample consent orders for a property settlement might include something like:
“That the wife shall pay to the husband the sum of $25,000.00 within thirty (30) days of the date of these Orders and simultaneously the husband shall do all acts and things and sign all such deeds, documents and instruments as may be necessary to transfer to the wife all his right, title and interest in the property located at 1 Smith Street, Brisbane in the State of Queensland.”
This appears to be a clear and technical sample consent order for property settlement, and without years of experience as a solicitor would easily seem appropriate to use. It simply says that the wife pay the husband $25,000.00, and he gives her the house.
What this order fails to cover is any number of possible issues, including:
A court will find issue with sample consent orders for property settlement like this, being used, as they are ambiguous, and can lack finality as they do not provide ‘default orders’ to cover situations where the order is not fulfilled. For example, in this instance, it would usually be drafted that if the wife were unable to pay the cash sum of $25,000.00, that the house be sold so that this money can be paid to the husband from the sale proceeds.
This is not to say that a non-lawyer is incapable of drafting up these orders, and in fact there are many DIY kits available to purchase online which provide template orders for use. It can still be prudent and ultimately time and cost saving to simply engage a solicitor. If you have to pay a few separate filing fees at $160 each time, you may have already spent what it would have cost to have a solicitor do it in the first place.
If you’re looking to move on in life without the hassle, expense and stress of a court proceeding, get in touch with us today. You can schedule an appointment for a time that suits you or fill out the short contact form and we’ll get back to you.
Whilst it is prudent and valuable to have a solicitor write your orders in their entirety, consent order examples are useful insofar as providing ideas as to what you truly need to cover in your Application for consent orders. A consent order example which may be useful in parenting arrangements can be as simple as:
“That the mother and father not consume alcohol in the presence of the children or be in any way affected by alcohol whilst the children are in the mother or father’s care or control.”
When parties are making an Application for Consent Orders for parenting arrangements, they are often under the impression that the orders are for the purposes of stating who the child or children will live with, and when they will spend time with each parent. In fact, parenting orders can provide for any number of things with regard to the children, the responsibilities and authority of the parents, and obligations that can be imposed such as to refrain from drinking alcohol or being under the influence of drugs whilst around the children.
Another consent order example may be that neither parent may denigrate the other parent in front of the children, including calling the other parent names, or exposing the children to arguments between them. In many cases, a solicitor will include orders like this as standard, but where any parent has a concern about certain actions of behaviours of the other, very specific orders can be included to protect the children from this.
Although unlikely to appear in a consent order, a consent order example might also be that one party undergo regular drug testing. Whilst this is usually an order made by a judge, sometimes a party will voluntarily agree to do this simply to appease the other parent who may have concerns about illicit drug use and would otherwise not allow the other parent to spend time with the children but for such testing being undertaken.
If you have any particular concerns, we are able to assist you to draft orders to cater for almost any situation.
A consent order example, whilst perhaps not so useful for drawing up the orders yourself, can still be very useful to provide ideas as to what to include. Such a consent order example for a parenting order might include:
“The parties are to maintain a ‘communication log book’ in the child’s overnight bag for the purpose of communicating with one another as to issues concerning the child’s health and welfare, including but not limited to… etc”
This can be a handy order to get around issues of conflict between the parents, and may even offer the parties a safeguard against abuse from the other parent which might be suffered if communication is made directly via phone or email. Communication books which are accessible by the children subconsciously force the parents to be mindful of what they write and how they write it, because their child or children might read it. Also, as it is a written medium, they are likely to consider the implications of their words being used as evidence in court of inappropriate behaviour, should the need arise.
As far as a consent order example goes, they can always be used as a template and expanded or elaborated on to suit the parties involved. The important thing, from a court perspective, is that they are clear and unambiguous. A poor consent order example would be something like ‘changeover is to occur at a location agreed to by both parents’. This does not provide any Plan B or default order if the parents don’t agree on a location. A court may be willing to accept such an order on the basis that the parties are amicable and they do not foresee there being any issue, but if anything were to indicate otherwise they may be just as inclined to dismiss the entire application.
It must be noted that if the court considers even one of the orders to be unacceptable, they are at liberty to dismiss the entire application, as they cannot simply delete the order they don’t accept. Just to add insult to injury, the court will not tell you why they dismissed the application and you may end up resubmitting the same ‘faulty’ order again!
A common question regarding property settlement is who is to be held responsible for outgoing costs of the former matrimonial home, pending sale or finalisation of property transfer into a sole name. A consent order example in such a situation may be:
“That pending completion of the sale, the wife have the right to occupy the property to the exclusion of the husband subject to the wife keeping the property tidy, clean and in repair (having regard to its present condition), permitting inspection by agents and prospective purchasers at all reasonable times and paying the following payment as and when they fall due…”
This consent order example provides the wife with the security of remaining the sole occupant of the property and maintaining this accommodation until such time as she has funds from the sale to obtain new accommodation, and protects the husband from the liabilities of the property to allow him to pay rent in his new home.
Although only a consent order example, it can be a good template and basis for something further, and can be made to be very particular to the parties. Such an order could provide that the wife pay for some expenses, but the parties be jointly liable for others. In some cases, the husband may have substantially greater income and wish to continue paying the mortgage pending sale, as his children remain living in the property also.
Financial consent order examples are usually the biggest pitfall of parties wishing to write up their own orders without the assistance of a solicitor. Courts require clarity and finality to orders, as well as default clauses to ensure that if a financial separation cannot be resolved as the parties prefer, that there is a ‘backup plan’ provided with a very specific timeframe for action. In this case, the property is required to be sold, and usually this would be ordered to be done within a specified period i.e six months from the date of the orders.
A default order would be included, then, that if it is not sold within that time, it is to be listed for auction within, say, six weeks of this time. The auction order would set down the requirements of each party and further default orders if it does not sell at auction, usually being that it will continue to be listed for auction until such time as the reserve price is reached and the property is finally sold.
Further Samples of Consent Orders can be fount on the Family Court Website