Consent Orders

Consent orders may be filed by parties at any time during court proceedings or as an application of its own where no court action has begun. These options take the following forms:

Proceedings pending

• Signed and handed up at court or at a court conference
• Signed by the lawyers in their respective offices and then filed

This applies in the FCC (FCCR 13.04) and Family Court and FCWA (FLR 10.15).

Proceedings not pending

• Application for Consent Orders — must be filed in the Family Court or FCWA: FLR 10.15

Signed at court or court conference – either court

Hand-written minutes of consent orders may be drawn up and signed at court or at a court conference by your barrister, yourself or your local agent, and then handed up to the court. For consent parenting orders, certification as to any abuse or family violence is required (see “certification for consent parenting orders” below).

The court will then direct the applicant’s solicitor to arrange for a typed copy of the minutes to be emailed to the court. The email address is usually provided by the court officer on the day. Add cover sheets for the Order (for procedure and precedent, see “signed in your office” below). The court will then seal the Order and upload an e-version of the order to the Courts Portal to download.

Signed in your office – for filing in the FCC, pending proceedings

More formal minutes of consent orders, with cover sheets attached, may be prepared by the lawyer for one of the parties (usually the applicant) where the consent was not reached during a court hearing or conference.

What to file in the FCC?

File by emailing the docketed judge’s associate or (if that address is not known) the registry (with a copy to the other party):

• in Word form, two cover sheets (with the unsigned minutes are called a “draft Order”) in the form below and available from our website
• a PDF and a Word version of the signed minutes (in the form below and available at our website)
• a covering letter (the content of which should be agreed between the solicitors for each party), citing the name and court file number, in which you refer to the orders as being interim or final, as applicable, and request that sealed orders issue in due course
• (for a consent order splitting superannuation) an affidavit from a lawyer that the superannuation interest has been valued, and the superannuation trustee given procedural fairness (for precedent, see “affidavit in support of superannuation split” below, also available at our website).

Note – That affidavit sets out your obligations in the event of a consent order that includes the making of a splitting order.

• (for a parenting order) a copy of the brochure “Parenting orders – obligations, consequences and who can help” (available online from our website) which should be attached to the minutes.
• Subscribers in Victoria and Tasmania, see this notice as to the electronic engrossment of orders.

Certification for consent parenting orders

From 11 July 2011 in the FCC lawyers must, when seeking consent parenting orders in court, make brief oral submissions as are currently made when consent property orders are sought. In parenting cases, lawyers must tell the court whether or not there have been any allegations in the proceedings of child abuse, neglect, family violence, mental ill health, drug or alcohol abuse, serious parental incapacity or any other allegation involving a risk to a child and, if so, how the consent order attempts to deal with those allegations: FCCR 13.04A and 13.05.

The court will determine whether the proposed arrangements are appropriate in all the circumstances and do not expose the child to an unacceptable risk of harm. When consent orders are sought in chambers, the parties or their legal representatives will be required to complete and sign the approved form “Application – Draft Consent Parenting Orders and allegations of abuse or family violence”. This form is attached to our online precedent minutes of consent orders (FCC).

Signed in your office – for filing in pending Family Court of Australia proceedings

Note – This procedure is adaptable in WA by using precedent minutes of consent orders designed for the FCWA available at our online members’ Practice News (“FCWA”).

What to file?

File by emailing the docketed judge’s associate or (if that address is not known) the registry (with a copy to the other party):

• in Word form, two cover sheets in the form below and unsigned minutes
• a PDF and a Word version of the original signed Consent Orders (in the form below and available at our website)
• a covering letter (the content of which should be agreed between the solicitors for each party), citing the name and court file number, in which you refer to the orders as being interim or final, as applicable, and request that sealed orders issue in due course
• (for a consent order splitting superannuation) an affidavit from a lawyer that the superannuation interest has been valued, and the superannuation trustee given procedural fairness (for precedent, see “affidavit in support of superannuation split” below and available at our website)

Note – That affidavit sets out your obligations in the event of a consent order that includes the making of a splitting order.

• (for a parenting order) a copy of the brochure “Parenting orders – obligations, consequences and who can help” (available online at our website) which should be attached to the minutes.

Certification for consent parenting orders

From 1 March 2018 lawyers in the Fam Ct, when seeking consent parenting orders in court, must advise the court whether their client considers that a child has been or is at risk of abuse, neglect or family violence or a party has been or is at risk of family violence and must explain to the court how the order attempts to deal with such an allegation: FLR 10.15A. The court will determine whether the proposed arrangements are appropriate in all the circumstances and do not expose the child to an unacceptable risk of harm.

Consent minutes filed in a current case in the Fam Ct must be accompanied by the form Annexure to Proposed Consent Parenting Order (Current Case). This form is attached to our precedent minutes of consent orders (Fam Ct) at our online “forms and precedents”.

Application for Consent Orders – no pending proceedings

If you have negotiated a settlement without having to issue court proceedings, you may document and file it as an Application for Consent Orders (available at our online “forms and precedents”).

Where to file?

As anomalous as it might seem, an Application for Consent Orders cannot be filed in the FCC (where you would usually be bringing your proceedings were the matter not settled). It is required to be filed in the Family Court of Australia or FCWA: FLR 10.15(1)(b)

A tip

Because your local State Magistrates Court may also receive such an application (check first that it still has a family law list), some lawyers make it a practice of filing an Application for Consent Orders there instead. Before doing so, however, consider the implications of s 96 of the FLA (or s 94AAA for an order by a family law magistrate of WA).

Section 96 provides that:

• a party to an order from a court of summary jurisdiction can appeal to the Family Court of Australia
• they may do so within 28 days (FLR 22.03)
• such an appeal is as of right (no grounds of appeal need to be established)
• the matter will be heard de novo (afresh, not limited to a point of law)

The fact that the order was made by consent is not a valid objection to a rehearing:

Robinson & Willis [1982] FamCA 16.

You can avoid giving disgruntled parties an easy avenue for changing their mind by filing all your Applications for Consent Orders in the Family Court of Australia or FCWA.

Effect of delay in filing the Application

A respondent’s consent to an application for consent orders lapses if 90 days have passed since the date of the first affidavit in the Application: FLR 10.18 In the event of such delay between signature by the parties, the first party should re-swear their affidavit prior to the second party signing.

What to file?

Note – This procedure is adaptable in WA by using precedent minutes of consent orders designed for the FCWA available at our online members’ Practice News (“FCWA”).

Prepare and eFile at the comcourts portal (with number of copies as per covering letter on next page):

1. Application for Consent Orders (available online at our website)
2. Cover sheets, consent orders and certification as per Application for Consent Orders – Consent Orders Template a link to which is here at our eBook and at our online “forms and precedents”
3. A covering letter, a precedent for which is set out below and available online at our website.
4. (If seeking a super splitting order by consent) file a lawyer’s affidavit as to valuation and procedural fairness (see “affidavit in support of superannuation split” below)
5. Brochure “Parenting orders – obligations, consequences and who can help” If seeking a parenting order, attach this to the minutes (available at our website)
6. (For a parenting order) if either party has certified at item 25 of your Application that there has been or is such a risk a Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders) must be filed with your Application.
7. Once the application and draft orders are filed a sealed version of the application will be downloadable from the portal, which practitioners may serve on the other party for the sake of clarity.
8. When the orders are made the Court will usually send a hard copy to the practitioners and a copy will also be available on the portal.

Filing fee?

$170

Issue of consent order

The court will return a sealed copy of your Application to you and within a few weeks or so will seal the draft order and issue it to the parties as the court’s formal order. If your Application is requisitioned for any irregularity, you will receive a letter or email from the court, referring you to the matters requiring attention. When you have attended to those matters, you may re-file the Application.

Opting-in by de factos separating before 1 March 2009 (1 July 2010 in SA)

An opt-in and lawyer’s statement to attach to Answer 29 of the Application for Consent Orders, if applicable, is available at our online precedents (via a keyword search for “opting in”).

Parenting plan

Parenting plans are not recommended, mainly because they cannot be enforced as an order can (except indirectly via an application for a parenting order under s 65C as to which the court must have regard to the terms of any parenting plan “if doing so would be in the best interests of the child” under s 65DAB). An Application for Consent Orders is the way to go, and the cost is about the same. For those parties who would nevertheless prefer their own informal arrangement see our precedent parenting plan (with explanatory notes) at our online “forms and precedents”.