If you and your ex-spouse can agree to a child support arrangement or division of marital property, that agreement can be formalized through a family law consent order. It is a written agreement between you and your ex-spouse, and, if approved, will become a legally binding court order.
What are consent orders?
In general, family law consent orders fall into two categories:
Parenting
This includes how decisions are made for the child, who the child lives with, when the child spends time with each parent, and whether one parent can help the child while the child is in the care of the other parent. It includes instructions on how you can communicate with the child.
Property
These include orders on the division of marital property, such as spousal support, division of pensions, organization of capital settlements, and sale of marital homes.
You can apply for either child support or property guidance separately, or you can apply for both child support and property guidance in the same application.
What is the process for obtaining a family law consent order?
The process of obtaining a family law consent order is relatively straightforward. It is also more time and cost efficient than other methods of resolving family law disputes because it is a purely administrative process and does not require court appearances.
This process consists of three steps.
Negotiation
This includes talking to the other party to reach an agreement. This can be done by the parties themselves or by their respective attorneys. The negotiation stage can require tactical considerations and compromises, so it is helpful to seek the assistance of a lawyer who can provide comprehensive advice on your rights and entitlements when negotiating.
Drafting
This includes preparing the necessary documents for submission to the court. When applying for a custody or ownership order, you must provide:
1. An Application for family law Consent Orders
This application will provide brief details about each party and child, a list of each party’s assets, liabilities, and financial resources, and outline the implications of the family law consent order you are applying for.
2. The Consent Orders
It is a document that reflects the agreement of the parties and outlines how that agreement will be implemented (i.e., who will do what and the time frame for doing it). It is important that the order is drafted properly so that the court can enforce the order. Incorrectly created orders can lead to further problems in the future. Therefore, it is important to seek the assistance of an attorney in drafting these orders if you are unfamiliar with the requirements.
3. Annexure to proposed family law Consent Orders
If you are applying for a custody order, you will also need an attachment to the proposed consent custody order outlining whether the child is at risk of domestic violence, abuse, or neglect.
4. Notice to third parties
If you solicit an order for real estate, you may be required to notify third parties prior to submission. For example, when applying for a division of a pension plan, the pension fund trustee must prepare a letter certifying compliance with the order sought and present the letter to the court at the time of filing.
Filing
This includes submitting consent orders and related documents to the court. The original of each document and his three copies must be submitted.
Benefits of consent orders
There are many advantages to formalizing an agreement through a family law consent order. These benefits are:
- Once orders are placed, they are final. It is very difficult to change an order once placed unless the parties agree.
- An order, once issued, is enforceable. Courts can enforce orders in a variety of ways, including signing documents on behalf of the vetoing party. If more extensive measures are required to enforce the order, we may apply to the court for further orders to assist in compliance.
- With respect to property matters, the transfer of property (including marital homes) is exempt from the payment of stamp duty if transferred to the parties in the relationship or children.
Restrictions on filing family law consent orders
There is no time limit for applying for a consent order seeking a custody order, and the application can be made any time after the parties have separated. However, there is a time limit for filing a consent order requesting a title order.
For married couples, this period begins with the approval of the divorce. If the divorce is granted, she must file an application for a consent order within 12 months. In real couples, this period begins when the relationship breaks down. Once the de facto partners separate, they are given two years to file a consent order application to seek an order of ownership.
If you are unable to file your claim within these deadlines, you will need to seek permission (or approval) from the court, which may not always be granted.
Filing fee
When you file a request for a consent decree, you must pay the filing fee. The current price is $165.00.
You may be waived of this fee if you can provide the court with documentary evidence to support your claim. Examples of exemptions include:
- Prove that you hold a medical card, pensioner’s discount card, federal senior citizen card, or other card issued by the Federal Office of Human Services or the Veterans Administration and are eligible for federal medical discounts;
- You have legal aid;
- You are receiving Child Benefit, Ausstudy or Study payments;
- You are under the age of 18;
- Income, cost of living, liabilities, and assets are so high that paying full premiums leaves you financially destitute.
For more information on eligibility, please refer to the Court Fee Waiver Guidelines on the Australian Federal Circuit and Family Courts website.
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