What are consent orders?
A consent order is a final order made by the Family Court. It documents the agreed custody and care arrangements for children, and/or the division of property, after the break down of a marriage or de facto relationship.
A consent order is obtained by making an Application to the Family Court. Both spouses/parents must agree to the proposed order and sign the application.
Can I change consent orders?
Consent orders are intended to be final. Once made, they can be changed only if both parties consent to change the order, this requires making a further application to the court for new consent orders.
If both parties do not agree to change the consent order, then there are only limited circumstances in which the order can be changed or set aside. Because it can be very difficult to change consent orders once they have been made, it is important to obtain legal advice before filing an application for consent orders to ensure that the orders achieve the desired outcome.
Do I need to be divorced before I can apply for consent orders?
You can apply to the court for consent orders any time after you separate, you do not need to be divorced.
Why should I obtain consent orders for my children?
The benefit of obtaining consent orders to record the agreed arrangements for your children, is that it finalises those arrangements and they become binding and enforceable. Once made, the order is intended to remain in place until the children attain the age of 18.
Given the difficulty in changing consent orders, advice should be obtained prior to agreeing to record parenting arrangements in consent orders. There are often matters that are overlooked by parents when preparing consent orders, such as arrangements for holidays, international and domestic travel, and special occasions.
In addition to the agreed custody arrangements, the orders must also cover how the parents will make decisions in relation to the children, this is referred to as parental responsibility.
Why should I obtain consent orders to record my property settlement?
The only way in which to cut all financial ties between spouses is to complete a property settlement. The Family Courts will only recognise a property settlement if recorded in final orders, including consent orders, or a binding financial agreement. If you do not obtain consent orders or a binding financial agreement, then there is a risk that your former spouse may seek a further adjustment of property at a later date.
Other benefits to obtaining consent orders is that it qualifies you for an exemption on paying any transfer duty or capital gains tax on property that is being transferred between spouses.
Do I need a solicitor to prepare my Application for Consent Orders?
Whilst there is no requirement that either party obtain legal advice, we do recommend that a solicitor is engaged to prepare the consent orders.
If a solicitor is not engaged to prepare your consent orders, then there is a risk that the orders will be rejected by the court because the court is not satisfied that the agreement reached is just and equitable, the application has not been completed properly, or the orders prepared and not in an acceptable format.
Other reasons to have a solicitor prepare the orders is to ensure that the orders are enforceable, protect your interests and have adequate provisions in the event that one party cannot comply with their obligations. For example, if there is an agreement to transfer a property between spouses, but the order does not provide for what is to happen if the transfer cannot be completed, then it may then be necessary to apply to the court for further order as to what is to occur, this can become expensive.
We often see clients after consent orders have been made, seeking assistance to enforce court orders, however, have been unable to assist due to the way the orders were drafted and the fact that it is extremely difficult to change orders once they have been made.
What happens if my ex does not comply with the consent order?
If one party does not comply with their obligations under consent orders, then the other party can make an application to the court to enforce those orders. There are consequences for breaching a court order, for example, interest may become payable on any unpaid monies.
If orders have not been drafted appropriately, for example, no time limits are specified for an obligation in a particular order to be completed by, then there can be difficulty in enforcing orders. For this reason, we always recommend that orders be prepared by a lawyer and that both parties obtain their own independent legal advice.
How much do you charge for preparing consent orders?
If you have already reached an agreement with your spouse, congratulations you have done the hard work and already saved yourselves a lot of money. We offer a number of affordable options when it comes to fees for preparing consent orders. These options include:
- Fixed legal fees, which can be paid upfront for a reduced fee. Fixed fees provide you with certainty as to your legal costs;
- Deferred fees, you don’t pay anything until settlement of your matter; or
- Traditional time-based billing, where we charge based on the time spent on your file.
If you have not reached an agreement with your spouse, our Cairns family lawyers can assist you to negotiate your settlement.
Speak to one of our family lawyers today to book an obligation free initial consultation about your situation.