Introduction.
When families go through separation or divorce, one of the most pressing questions is how to formalise parenting arrangements or divide property without protracted conflict. Many Australians face the uncertainty of court proceedings, often fearing the cost, delay, and emotional strain. One solution that offers structure and legal enforceability is the use of Consent Orders. These agreements can turn what might otherwise become a heated dispute into a clear, court‑endorsed arrangement, but understanding how they work and why they matter is essential for anyone navigating family law issues in Australia.
If you’re unsure whether Consent Orders are right for your situation, consultPenrith Family Lawyers for clear, practical legal advice tailored to your needs.
The Legal Foundation of Consent Orders in Australian Family Law.
Under the Family Law Act 1975 (Cth), the Family Court of Australia and the Federal Circuit and Family Court of Australia (FCFCOA) have jurisdiction to issue binding orders relating to children, property, and financial matters following separation. While many think of court orders as something imposed after a contested hearing, the reality is that most family law matters never reach trial. Instead, they are resolved by agreement, and that’s where Consent Orders come in.
A Consent Order is a written agreement that is approved by the Court and given the same force as an order made after a hearing. It can cover a wide range of issues: who children live with, how much time they spend with each parent, who makes long‑term decisions about their welfare, and how property, superannuation, or liabilities are divided between separating partners.
What makes Consent Orders so powerful is their dual nature. On one hand, they represent the parties’ mutual agreement; on the other, once sealed by the Court, they carry the weight of law. That means if someone breaches them, enforcement can involve contempt proceedings or other serious legal consequences.
Parenting Consent Orders.
Parenting matters are among the most emotionally charged aspects of family law. Parents often struggle to agree on living arrangements, education, health decisions, and religious upbringing. Section 60CC of the Family Law Act 1975 sets out the primary considerations for the Court in making decisions about children: the benefit of the child having a meaningful relationship with both parents, and the need to protect the child from harm.
When parents agree on these matters, they can submit their arrangement for the Court’s approval as Parenting Consent Orders. This is more than just a rubber stamp. The Court must still be satisfied that the orders are in the best interests of the child (s60CA). In practice, this means even if parents both agree that a child should, for example, live predominantly with one parent, the Court won’t approve it unless it aligns with the child’s welfare.
Parenting Consent Orders can provide a clear schedule of time, for example, weekdays with one parent, weekends with the other, alternating holidays, and stipulate how parents will communicate about school issues, medical appointments, or relocation. Once made, these orders are binding, and failure to comply can result in enforcement actions, make‑up time orders, or, in extreme cases, penalties under Division 13A of the Family Law Act.
Property Consent Orders.
Property division after separation can be complicated, particularly when there are assets like real estate, investments, or business interests. Section 79 of the Family Law Act allows the Court to alter property interests if it’s just and equitable to do so. Instead of litigating who gets what, separating couples can negotiate a financial settlement and submit it for approval as Property Consent Orders.
The Court’s task here is different from parenting matters. It doesn’t ask whether the orders are in the “best interests” of a child; it asks whether they are “just and equitable” between the parties. This phrase was interpreted in the High Court case of Stanford v Stanford [2012] HCA 52, which confirmed that the Court must first determine whether it is even appropriate to alter the parties’ property interests before considering how to divide them.
Consent Orders can direct the transfer of property titles, the splitting of superannuation (under Part VIIIB of the Family Law Act), or the payment of lump sums. They can extinguish spousal maintenance claims if the parties agree that neither will seek ongoing support. Once approved, these orders are enforceable just like any other court order, giving certainty to both sides and providing finality to financial arrangements.
Why Not Just Write an Agreement Without Going to Court?
Some separating couples wonder why they can’t simply write down what they’ve agreed on and keep it as a private arrangement. While nothing stops parties from having a written agreement, without formalisation, it lacks legal force. A parent could suddenly withhold a child from the other, or someone could refuse to transfer a property, and the agreement wouldn’t be enforceable.
Another option is a Binding Financial Agreement (BFA), often compared to a “prenup.” While BFAs can also settle property matters, they are not scrutinised by the Court for fairness; they simply require independent legal advice for each party. If not drafted carefully, BFAs can be set aside for reasons like fraud, undue influence, or significant changes affecting children (s90K of the Family Law Act). Consent Orders, in contrast, undergo judicial review to ensure they meet legal standards.
The Process of Obtaining Consent Orders.
Applying for Consent Orders is an administrative process rather than a court hearing. Parties jointly file an “Application for Consent Orders” along with the proposed orders. In parenting cases, they provide background information about the children’s ages, schooling, and current arrangements. In property cases, they file a financial statement disclosing all assets, liabilities, and superannuation.
The Court then reviews the documents “on the papers,” meaning without a physical hearing. If satisfied that the orders are in the best interests of the child (for parenting) or just and equitable (for property), a Registrar will seal them.
When Consent Orders are Refused.
While most agreed orders are approved, the Court can refuse them. This might happen if the orders are vague, impossible to enforce, or contrary to the law. For example, if parents agree that a child under 18 will permanently live overseas without safeguards, the Court might reject the order unless it’s demonstrably in the child’s best interests. Similarly, if a property settlement leaves one party destitute without justification, the Court could deem it not “just and equitable.”
In Malcher & Malcher [2016] FCCA 2572, for example, proposed property consent orders were rejected because the Registrar was not satisfied that the settlement fairly divided assets. The parties had to revise and resubmit their agreement. This illustrates that while Consent Orders streamline resolution, they still undergo judicial scrutiny.
Variation and Enforcement.
Once made, Consent Orders aren’t easily changed. Parenting orders can be varied if there has been a significant change in circumstances, known as the Rice & Asplund principle (from Rice & Asplund (1979) FLC 90‑725). This rule prevents constant re‑litigation unless something substantial has changed, like relocation, safety issues, or the child’s needs.
Property orders, however, are usually final. They can only be set aside in exceptional cases under s79A of the Family Law Act, such as fraud, duress, or failure to disclose assets.
Enforcement is another critical aspect. If a party breaches parenting Consent Orders, the other can file a Contravention Application. The Court may impose penalties, order make‑up time, or require participation in parenting programs. Property Consent Orders can be enforced through mechanisms like writs, garnishee orders, or even the appointment of a receiver to sell property.
Why Seek Legal Advice?
Although parties can technically apply for Consent Orders themselves, the complexity of family law means professional advice is invaluable. Misunderstanding what is “just and equitable,” overlooking tax implications (like capital gains tax on property transfers), or drafting unclear orders can cause problems later.
Legal practitioners are familiar with both the technical drafting requirements and the strategic considerations involved. They can ensure full disclosure, negotiate terms that reflect both parties’ interests, and prepare orders that the Court is likely to approve.
Practical Benefits of Consent Orders.
The advantages of Consent Orders are significant. They avoid the stress and delay of a court hearing. They provide enforceability and finality. They allow tailored arrangements for unique family circumstances. They also offer a safeguard because the Court reviews the orders for fairness or the child’s best interests.
Without them, parties risk informal agreements breaking down, disputes re‑emerging, and potentially more costly litigation later.
Common Misconceptions.
A widespread myth is that Consent Orders always require a court appearance. In reality, most are approved administratively. Another misconception is that once Consent Orders are made, they can easily be “reopened.” As outlined earlier, this is not true; they’re designed for finality.
Another misunderstanding is thinking that Consent Orders are “just a formality.” The Court does scrutinise them. For instance, in Ellis & Ellis [2014] FamCA 50, proposed parenting orders were refused because they did not adequately address the child’s welfare needs. This serves as a reminder that Consent Orders must meet substantive legal standards, not just reflect what the parties want.
Conclusion
Separation and divorce are already stressful without uncertainty about legal obligations or arrangements for children and property. Understanding Consent Orders, how they are made, enforced, and sometimes challenged, empowers you to make informed decisions. While the process may seem straightforward, the implications of every clause in those orders can affect you and your family for years. Speaking with knowledgeable professionals like Penrith Family Lawyers can clarify your options and protect your rights. Whether you’re considering filing for Consent Orders or responding to a proposal, take the time to understand the law and seek guidance before you sign anything.