If you have separated or divorced and have come to an agreement about the division of property or for the ongoing care and maintenance of minor children, then you can have these agreements formalised by the Family Courts. Consent Orders are final and binding and once ordered by the Court, it is very difficult to vary or overturn the Orders.
Consent Orders are agreements made between separated or divorced couples that have been formalised by the Family or Federal Magistrates Court. These agreements may include arrangements about the following issues:
- property settlement
- children's issues
- spousal maintenance
Consent orders may be sought by separated or divorced couples who:
- have agreed on matters and want to formalise these agreements
- would like to avoid litigation in Court to determine these issues
- are in the middle of litigation in Court but have come to an agreement on matters and wish to avoid further litigation
- may have inadequate financial resources to pursue litigation in the Family or Federal Magistrates Court.
Consent Orders are a good option because separated or divorced couples:
may apply themselves without actually having to go to Court or see a Solicitor
can be assured that the Consent Order is final and binding because the circumstances in which either party may apply to set aside the Consent Order or change any provisions within the Consent Order are limited.
Consent Orders do not apply in relation to:
- property settlement between de facto couples (couples who are living or who have lived together, although not married to each other)
Exception: unless there are children of the relationship and the property orders sought also relate to those children and other requirements are met.
- spousal maintenance in relation to a de facto relationship
- child maintenance in relation to children under 18 who were born after 1 October 1989 or whose parents separated after that date. This matter is dealt with by the Child Support Agency (Tel: 131 271).
To apply for Consent Orders, couples should:
STEP 1. AGREE ON MATTERS
Come to a final agreement with your former partner or spouse regarding arrangement for the care of minor children and division of property. This can be done by way of negotiation or mediation.
STEP 2. COMPLETE DOCUMENTS
Complete and sign the Consent Orders application form and draft the Minutes of Consent. The Minutes of Consent has terms relating to the agreements made and the application is a form that asks that Court to make the orders in the attached Minutes of Consent. You can download the Consent Orders kit to draft your own Minutes of Consent or customise your Consent orders kit online now.
STEP 3. SUBMIT TO THE COURT
Make copies of all of your documents. Submit the original application, together with the original and at least 2 copies of the Minutes of Consent with the Family or Federal Magistrate's Court. You can submit by post or in person. Make sure that you have the filing fee ready.
STEP 4. PAY THE COURT FEE
The current filing fee for an Application for Consent Orders in the Family Court is $160 (as at July 2016). This fee is subject to change from time to time.
STEP 5. RECEIVE SEALED COPIES
You will receive 'sealed' copies of the Orders back from the Court. You will not receive a copy of the application form back from the Court, so you should ensure that you keep copies before submitting to the Court.
STEP 6. SEND COPIES
Next, you should provide a copy of the sealed Orders to all parties. Ensure that you keep certified copies in a safe and secure place.
In order to achieve any agreement on property settlements, the couple first must work out what their approximate entitlements will be. This is done by anticipating what may be given to each party if the property settlement was determined by a Court.
In determining property entitlements between separated or divorced couples, the Court will undertake the following steps:
- identification of assets
- valuation of assets
- division of assets according to contribution and future needs (s.79(4) and s.75(2) of the Family Law Act set out factors that the Court may consider in making any orders on property entitlements).
Generally, the factors (relating to point 3 above) considered by the Court are:
- financial contributions - such contributions may be direct/indirect in nature towards the children of the marriage and property acquired during marriage
- non-financial contributions – eg. housework, child care
- future needs of both parties - eg state of health, earning capacity of each party.
It is important to note that the Court will assess the pool of assets as a whole and NOT on an asset by asset basis.
Common misconceptions about property settlements
The following are common misconceptions in relation to property settlements:
- that property will be divided equally regardless of individual circumstances
- the owner of an asset will have exclusive rights over the asset
- the first person leaving the matrimonial home will be penalised financially
- the division of property is based on whose "fault" it was that the marriage broke up
- the parent living with the children has the right to live in the home until the children of the marriage are 1 8 years old.
All these ideas are wrong and are NOT used by courts in determining how the assets are to be divided.
The Court must consider what is in the child's best interests when deciding to make an order regarding the ongoing care for children of the relationship.
The factors which the Court must consider are listed under s68(F)(2) of the Family Law Act 1975. To determine what is in the child's "best interests," the Court must consider:
- any wishes expressed by the child (and any factors such as the child's maturity or level of understanding);
- the nature of the relationship of the child with each of the child's parents and with other persons;
- the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
- either of his/her parents; or
- any other child, or other person with whom he/she has been living
- the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
- the child's maturity, sex and background;
- the need to protect the child from physical or psychological harm caused, or that may be caused by:
- being subjected or exposed to abuse, ill-treatment, violence or other behaviour or
- being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
- any family violence involving the child or a member of the child's family;
- any family violence order that applies to the child or a member of the child's family;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the court thinks is relevant.
The last factor gives the Court a wide discretion (i.e. the choice) to decide what is in the child's "best interests."
What issues can be covered?
This list below are some examples of children's issues that can be covered in Consent Orders, however, this list is by no means exhaustive.
- with whom and where the children are to live
- Sets out when the children spend time with the non-resident parent or persons who are important to the child's life such as their grandparents or relatives. For example, a common provision is for the non-resident parent or relative to have contact with the children every weekend and half of the school holidays
- "Contact" includes time with parent or other person directly, by phone or other correspondence
- "Supervised contact" is where there is a significant risk of harm to the children in that person's care
- Contact provisions should be made to adapt to the individual circumstances of the parents. For example, matters to be considered include:
- how far apart they live from each other
- their work commitments
- children's social and sporting commitments
Collection and delivery
These arrangements deal with how, when and where the non-resident parent will meet with the children and return them back to the parent the children live with.
Contact centres are an option if the parents do not want to meet or speak with each other during the collection and delivery of the children. Contact centres are venues where children may be dropped off and collected safely without either parent having to come into contact with each other.
Other specific issues
- dealing with other areas of parental responsibility
- may be general or specific arrangements in relation to particular areas of children's care.
Under section 72 of the Family Law Act 1975, a party to a marriage may seek maintenance from the other party:
- to the extent that the other party is reasonably able to do so
- provided the first-mentioned party is unable to support himself/herself adequately.
The Court must take into account matters prescribed under s.75(2) of the Family Law Act 1975 when making orders for spousal maintenance. Generally, these matters relate to the ability of either spouse to support themselves and the reasonableness of a spousal maintenance order.
Furthermore, the Court may order the immediate payment of a periodic sum or other sums as the Court considers reasonable, where a spouse appears to be in immediate need of financial assistance.
This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice.