All about Consent Orders

What is a Family Court Consent Order?

A Family Court Consent Order is a document written and agreed between two people after they separate which describes how they will divide their property and/or how they will co-parent their children.

For people living in New South Wales, Queensland, Victoria, South Australia, Tasmania, the Northern Territory or the Australian Capital Territory, the document is submitted the Federal Circuit and Family Court of Australia for approval.

For people living in Western Australia, the document is submitted to the Family Court of Western Australia for approval.

Once the document is approved by the court, it becomes legally binding.

The benefits of Family Court Consent Orders

Consent orders for property settlement have the following benefits:

• They are legally binding and have the same effect as a court order made by a judge after a contested court hearing.
• There are limited circumstances in which the orders can be set aside, giving you a high degree of financial security and certainty for the future.
• They enable you to be exempt from paying stamp duty on a property that is being transferred.
• They can give you capital gains tax rollover relief.
• They enable you to split your, or your ex-partner’s, superannuation as part of the property settlement.

The process to get Family Court Consent Orders for property settlement

To obtain consent orders, the following steps are involved.

Negotiate to reach agreement

Negotiate with your ex-partner to reach agreement on the terms of the property settlement. This can include the division of real estate, financial assets, debts, superannuation, and any other relevant property.

Write the consent orders

Once you have reached an agreement, document the terms of that agreement as proposed consent orders. The agreement needs to clearly outline the agreed-upon division of property and any other relevant financial arrangements.

Court consideration of the consent orders

Lodge the proposed consent orders with the Federal Circuit and Family Court or Family Court of Western Australia, along with an application for consent orders.

The court will review the proposed orders to ensure they are fair and reasonable and that the orders comply with the requirements of the Family Law Act.

Approved Family Court Consent Orders

The court’s approval makes the consent order legally binding and enforceable. Once approved by the court, you and your ex-partner must follow the terms of the orders.

Time limits for Family Court Consent Orders

Consent orders can be filed any time after separation but need to be filed within 12 months of a divorce or 2 years since the end of a de facto relationship.

If you are filing the orders after this time, you will need to seek leave of the court to file the application which you can do by seeking the court’s permission as the first order sought.

Consent orders rejected by the Family Court

The court will reject consent orders, known as a requisition, for the following reasons:

• The orders are not written in a format that is legally enforceable.
• The orders do not contain contingency clauses, such as the default sale of a property if a mortgage is unable to be refinanced.
• If there are superannuation splitting orders, a valid valuation has not been submitted to the court or the superannuation trustee has not been given procedural fairness in pre-approving the orders.
• The overall division of net property is not seen as fair to both parties, what the court calls being just and equitable.
• The orders do not comply with the Family Law Act.

Challenging a Family Court Consent Order

Once approved by the court, consent orders are difficult to be challenged. They will only be set aside by the court in very limited circumstances:

• Orders can be set aside if there has been a miscarriage of justice due to fraud or duress. You are expected to fully disclose your assets in the application. Hiding assets or not declaring them in the application can be a reason for the court to set aside the orders.
• The court can set aside orders if it is impracticable to carry them out due to changed circumstances. For example, if a property has been destroyed after the orders were made, orders for the sale of that property would be impracticable to be carried out.
• Orders can be set aside if a child will suffer financial hardship due to a change of circumstances that is out of the ordinary. An example of this would the child’s diagnosis of a medical condition requiring expensive treatment.
• The court can set aside the orders if a party to the orders has not fulfilled their obligations and it is just and equitable to do so.
• The court can set aside the orders if a proceeds of crime order has been made against one of the parties to the order or includes the parties’ property.

Family Court Do It Yourself Consent Order Kit

The Federal Circuit and Family Court of Australia provides an Application for consent orders (do it yourself kit). The court’s do it yourself kit provides the Application for consent orders form and the cover page template for the Minutes of consent.

The court’s do it yourself kit does not include any of the court orders that need to be written, however. Most people struggle with writing the court orders themselves, as they can be technically challenging. This is where most people will need the help of a family lawyer to ensure the court orders are written in a way that the court will approve.

Where to apply for Family Court Consent Orders

The application for consent orders is filed electronically on the Commonwealth Courts Portal or eCourts Portal of Western Australia.

Consent Order examples and samples

We are regularly asked by clients to fix their consent orders after they have been rejected by the court. People are surprised that the orders they wrote were not approved, as the orders appear on the face of it to be legally correct.

Sometimes these orders have been provided by friends based on their own successful property settlements. More often than not, the orders have been cobbled together from various internet searches for:

sample consent orders

examples of consent orders

consent order templates

court order precedents

An example we saw recently from a client who had orders rejected by the court was this:

That if either party shall refuse or neglect to sign any document or do any such thing as may be reasonably required to give effect to these Orders within fourteen (14) days of the service of the demand upon him or her to execute such document or to do such thing, the Registrar or Deputy Registrar of the Court is empowered to sign such document and to direct such things to be done in the name of the party in default.

The orders were requisitioned by the court due to the word “empowered”. Under the Family Law Act the Registrar does not exercise a power, but is instead authorised by the order to do an act or thing or sign a document.

Using Artificial Intelligence (AI) to write consent orders

We tested ChatGPT and Google’s Gemini to see what they produced. See the results and our assessment of how AI stacks up against an experienced family lawyer.

Free legal advice

• The Family Relationship Advice Line (FRAL) gives free legal advice and information to help with family relationship issues.
• Family Relationship Centres are funded by the Australian Government and provide people with Family Dispute Resolution mediation.
• Community Legal Centres are available in each Australian state and territory and provide people with free legal advice.