Consent Orders

Eales & Mackenzie Lawyers Melbourne

When you agree with your ex about parenting or financial issues, you don’t have to notify the court.  As long as you both follow the agreement, you may never need any court involvement but there are advantages in documenting your agreement by a consent order.  It has the same effect as an order made by a judge after a trial.

If you are already in court and you resolve your dispute before (or even during) a court hearing, you can still apply for a consent order.

Having an order provides certainty.  You might trust each other to follow the agreement but your ex might change their mind.  If this happens there would be no easy way to enforce your agreement and you may need to go to court anyway.

Beware of time limits!  You have one year after a divorce becomes final to apply for a property settlement order.  An informal agreement may be difficult to uphold if that year passes.

Like any court order, a consent order is binding and if your spouse stops complying, you can ask the court to make your spouse follow the order.  You cannot do this with an informal agreement.

Most consent orders cover parenting or financial issues but there are certain issues the Family Law Courts cannot address by means of a consent order.  They include:

  • Child support;
  • An order requiring a step-parent or non-parent to pay child maintenance;
  • Parenting orders for a person who is not a biological or adoptive parent, a grandparent, or other relative of the child:
  • Orders for medical procedures;
  • Cross-vesting orders.

Courts are responsible for the orders they make.  It is not a “rubber stamping exercise” so it cannot make an order that does not comply with the law.  The court will not make the order if the order does not comply with the Family Law Act.  In some cases, the court may schedule a hearing in order to obtain additional information before it will agree to your consent order.

Judges want parties to settle their disputes because, usually, an agreement you make with your ex is likely to be more suitable than any decision the court would impose.

Applying for a consent order is an administrative process.  You file an application and pay a filing fee.

Consent Order must be properly worded to comply with the requirements of the Family Law Act.  Failure to properly word them may lead to ambiguities, omissions and or unintentional contraventions and therefore the resumption of ongoing disputes with your former spouse.

Please contact Eales & Mackenzie’s Family Law department for further assistance and any queries you may have regarding this process on (03) 8621 1000.

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