If both parties have reached agreement about parenting and/or financial/property arrangements and want to formalise the agreement to make it legally binding, you can apply for consent orders. Consent orders can also be used to vary or discharge existing family law orders.
The Court will consider the consent orders sought taking into consideration whether parenting orders are in the best interests of the children and/or financial/property orders are just and equitable.
An Application for Consent Orders can be filed any time after separation but should to be filed within 12 months of a divorce or two years since the end of a de facto relationship.
If you are filing beyond this time frame, you will need to seek leave of the Court to file the application. You can do this by seeking permission as the first order sought.
Setting out your orders
The orders you seek concerning your children, finances and property, spouse or de facto partner maintenance will depend on the circumstances of your family. You should seek speak with our family lawyers about what orders to apply for.
Generally, Consent Orders that can be made by a court fall into two categories – parenting orders and financial orders.
These include orders relating to:
* Spouse maintenance – financial support for a party to a marriage or former party to a marriage.
* De facto partner maintenance – financial support for a party to a de facto relationship which has broken down (provided the requirements of section 90DK are met).
* Property – how your property, superannuation, financial resources and liabilities should be shared between you (in the case of a de facto relationship which has broken down, provided the requirements section 90SK are met).
There are special requirements where you are making an application for orders for property settlement and either party has a superannuation interest. If you are seeking a splitting order in relation to a superannuation interest in accordance with Section 90XT of the Family Law Act:
* You must have proof of value in relation to that superannuation interest.
* We can calculate the value of the superannuation interest and if the Family Law (Superannuation) Regulations 2001 providing a method for calculating the value we must be use.
* You must consider the taxation consequences of the order.
* Where a base amount is allocated then that amount cannot exceed the value of the interest (see Section 90XT(4)).
If you are seeking an order that imposes an obligation on the Trustee of the superannuation plan you must satisfy the Court that the Trustee has been accorded procedural fairness in relation to the making of the order.
Consent orders are legally enforceable and require careful consideration and drafting to be accepted by the Court. Consent orders are a set of orders agreed between the parties, accompanied by the Court form Application for Consent Orders, which are lodged at the Federal Circuit & Family Court of Australia . Generally, the parties do not need to attend Court, as a Registrar of the Court will consider the paperwork and make the orders if appropriate to do so. Those orders will then have the same force and effect as if made by a Judge following a lengthy hearing.
For consent orders, drafting must be precise and forward-looking as serious penalties can be imposed for breach of Orders. Orders can only be changed by agreement, or by the Court if there has been a sufficiently significant change of circumstances to warrant a Court reconsidering the orders.
Consent orders can also include others such as grandparents, step-parents and others where relevant.
Consent orders may be more appropriate where there is a higher degree of conflict between the parents, or where greater certainty is required.
Following a mediation, parties may have a written informal agreement, often titled “Heads of Agreement”. This agreement will not be a parenting plan unless it is signed and dated by the parents, and can only be a guide for the making of consent orders if that is what is wanted by the parties.
Parenting plans are an informal and flexible document that reflects an agreement reached between the parties as to the parenting arrangements for the children. To be recognised as a Parenting Plan under the Family Law Act, the document must be in writing and signed and dated by both parents. Others such as grandparents or step-parents can also be included in the parenting plan.
Parenting plans are non-binding, providing scope for re-negotiation and amendment if circumstances change. Parenting Plans are not bound by the rules of the Court, and can, therefore, cover a broader range of issues and be tailored to suit the individual needs and concerns of the parties. As parenting plans are not enforceable, statements can be included by the parties without the need for consideration of enforcement in the event of non-compliance. Parenting plans are most suitable for parents who are able to continue to communicate effectively and make joint decisions about their children after separation.
It is important to obtain legal advice as to what structure is most appropriate for you depending on your individual circumstances. If you have recently separated and are unsure of your next steps in your parenting matter please contact us to make an initial consultation so that we can advise you accordingly. 02 9633 1088