When it comes to Family Law disputes, most people think of a drawn-out process, the Courts and a price tag to go with it. The reality of the situation is that most parties opt to settle amicably, or after some brief negotiations or a mediation, and formalise the deal in either “consent orders” or a “binding financial agreement”.

So, what are consent orders?

A consent order is a document that is prepared by the parties or their lawyers, and signed off by them, which contains an agreement reached between them which formalises the arrangements for parenting/custody and/or financial/property matters that are entered into voluntarily by the parties (the parties often being a husband and a wife, a mother and a father, and the like).  Once signed, the consent order is sent to the court for “filing”, where it is adorned with the seal of the court and becomes legally binding on the parties.

Consent orders can deal with many things, including:

1.     The split of assets between parties, for example, the proceeds of a house, car, bank accounts and superannuation.

2.     The transfer of assets between parties, for example, if one party keeps  a house, a car and a bank account.

3.     The payment of money between parties.

4.     The payment or transfer of liabilities between the parties.

5.     The payment of spousal maintenance.

6.     Who has responsibility for children of the parties.

7.     Which parent children of the parties spend time with, and when.

8.     Permissions for various medical professionals, educational providers and authorities to speak to either or both parents.

9.     Directions to the parties to refrain from certain behaviors, for example, physically disciplining children, speaking ill and denigrating the other party, and drinking alcohol whilst the children spend time with the party.

Because these orders are voluntarily entered into, the parties have significant freedom to tailor the consent orders to suit their specific situation and can make the provisions work for them.

What are the benefits of consent orders?

The main benefits of a consent orders are:

1.     That the orders are enforceable by the court –that is, there are repercussions and penalties that might come about if one party chooses to breach the orders and the court has the power to order the enforcement of the various provisions.

2.     The orders allow the parties to outline an agreement without the direct input of the Court, giving the parties more freedom to reach an agreement that suits them.

3.     Consent orders are usually far more cost effective than engaging in litigation through the Courts.

4.     Consent Orders may exempt parties from stamp duty for the transfer of property between them.

5.     Consent Orders provide finality to the separation of the parties’ financial lives, and both parties can move forward without the potential of a future claim against their assets.

6.     The Court will only make an order if it is satisfied that the Order aligns with legal principles, and is “just and equitable” (in layman’s terms, “fair”) in terms of the outcome in financial cases, and in the best interests of the children considering risk issues in parenting cases.

What are the disadvantages of consent orders?

The main disadvantages of consent orders are:

1.     It is strongly recommended that both parties obtain legal advice and that a lawyer draft the consent orders to ensure accuracy thus leading to costs being incurred (albeit those costs are far cheaper than going to court!).

2.     There is a filing fee payable to the court when lodging the consent orders. At the time of writing this article, the fee is $170.

3.     Consent orders are final, and are not as easily changed as a parenting plan or informal agreement.

What are the penalties for breaching consent orders?

The court has wide discretion when it comes to the penalties for breaching consent orders, from a simple order to force the other party to comply to jail time! The main penalties for breaching consent orders are:

1.     Costs orders – that is, the breaching party may need to pay the other parties' legal costs.

2.     Paying the cost of “making good” the obligations of the breaching party.

3.     Fines.

4.     Orders forcing the party to undertake community service.

5.     Make-up time if a child has missed out on time with the non-breaching party.

6.     Variation of the orders – the court can re open the matter, and make important changes such as varying time arrangements or varying where the child lives.

7.     Jail time.

Overall, consent orders are a fantastic tool available to parties who are able to reach an agreement without the need of judicial determination.  

Should you need more specific advice about consent orders, feel free to book in for our free 15 minute consultation, we would love to hear from you!

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