Consent Orders: An Overview
Whether you’re currently going through a divorce or a relationship breakdown, having a consent order in place will help protect you and your family’s best interests during this difficult time. Here, we’ll help you understand consent orders and why you should have one if you’re going through a breakup.
What is a Consent Order? Are Consent Orders Legally Binding?
When a relationship ends, tensions can be high. A consent order is a legally binding agreement between ex-partners approved by the Court. It is often used to divide parental duties, protect children, divide shared property, and manage financial maintenance during a split.
If you’re going through a breakup of a marriage or de facto relationship, having a consent order in place can save you the time, anxiety and expenses of otherwise going through litigation or a lawsuit.
For a consent order to be approved, the Court must determine the conditions are fair before granting the order.
The Application Process for a Consent Order
While you can make a consent order application any time after a separation, we recommend applying within 12 months of divorce and 24 months from the end of a de facto relationship.
It is important to understand what a consent order covers, with information regarding children, financial settlement and maintenance outlined in the Family Law Act 1975.
At Rockwell Private Law, we understand the ins and outs of the Family Law Act to ensure we protect your loved ones and assets during a separation. To understand your legal rights, always seek advice from professional family lawyers.
Application Form
When you have reached an agreement on parenting and financial settlement, you can apply to have the Court formalise the agreement. You can find application kits through the Federal Circuit and Family Court website.
The kit includes a checklist and vital information before completing the application process. A family lawyer can help you through this process and provide expert legal advice.
Application forms must be submitted electronically or in person before the Court can approve your consent order.
Proposed Orders
The first step in applying for a consent order is to complete a proposed order. This is a formal document outlining the details you and your ex agree upon as part of the consent order. Everyone involved in the separation and their lawyers must sign a proposed order.
A proposed order consists of:
- A cover page, including the names of anyone included in the consent order.
- The details of the consent order. (We recommend getting expert legal advice when completing this section)
- Certification of the consent order, including the signatures of you, your lawyer, your ex, and their lawyer.
Notices
If you intend on including a parenting order, you must complete a ‘notice of child abuse, family violence or risk’.
A notice of child abuse, family violence or risk ensures the Court can accurately assess any risk to children impacted by the separation and that families receive the support and intervention they need. Australian courts must report child abuse or family violence allegations to the relevant authorities.
Additionally, if either you or your ex-partner change address during the application, you must complete a ‘notice of address for service’ to ensure all court documents are sent to the correct address.
Can A Consent Order Be Changed?
There may be times that you need to reevaluate your financial circumstances or your parenting arrangements. In these situations, consent orders may be changed.
To change a consent order, both parties need to agree to the new or changed terms of the original agreement. Alternatively, if one parent chooses to vary a consent order, they must apply to the Court with evidence of significant changes in circumstances.
In situations where there is family violence or abuse, the agreement of both parents may be waived.
For a Court to accept changes to a consent order, there must be evidence of a significant change in circumstances. This may include accommodating different family needs as children grow older or if one of the parents moves away or remarries.
These are examples of ‘significant changes’ that may constitute a change in consent orders. You can also apply to change consent orders regarding financial maintenance through the Court.
Changing a consent order should be taken seriously, and any changes need to be carefully evaluated in the child’s best interests and agreed upon by everyone involved.
Do Consent Orders Expire?
Unless both parties agree to an expiry date within the agreement, a consent order will not expire. Once a consent order application has been approved by the Court, the conditions will remain in place perpetually.
While a consent order cannot expire unless explicitly agreed upon within the order, it can be changed if both parties agree or if there is a significant change in circumstances that would be in the best interest of the children involved.
What Happens if A Consent Order is Breached?
When you have a consent order in place through the Court, you have peace of mind that any breaches of the agreement can be enforced and even treated as a criminal offence.
Suppose your ex breaches the consent order and does not provide a reasonable excuse. In that case, you may apply for a contravention order to pursue damages or punishment and ensure your ex complies with the consent order.
What is a contravention order?
A contravention order is made to the Court if you seek punishment for your ex breaching your original consent order.
If your ex has breached a consent order, the Court will consider the circumstances and determine appropriate consequences. This may include:
- Damages to be paid to you;
- A notice period if your ex does not comply with the order; or
- A fine or, in some circumstances, imprisonment.
If you don’t want your ex to be fined or punished for breaching a consent order, you may instead apply for an ‘enforcement order’. This ensures that your original consent order conditions are enforced rather than seeking punishment for the breach.
For More Regarding Family Law, Book a Consultation With Rockwell Private Law
If you’re considering applying for a consent order, we’re here for you. Our team of trusted family lawyers will help you understand your legal rights and responsibilities so that you get the right advice.
