Consent Orders in Family Law: Formalising Property and Parenting Agreements in Australia

What Are Consent Orders?

A Consent Order is an order of the Federal Circuit and Family Court of Australia made with the agreement of both parties. Rather than asking a judge to decide the dispute after a trial, the parties agree on the terms, draft the orders and file them with the Court for approval.

Once made, a Consent Order has the same legal effect as an order made after a contested hearing. It is binding, enforceable and (for property matters) generally final. The Court retains a supervisory role — it must be satisfied the orders are properly made before it will approve them — but the content is driven by the parties' agreement.

Property Settlement Consent Orders

Property Consent Orders record how the parties' assets, liabilities, superannuation and financial resources are to be divided after separation. They typically cover:

• the transfer of real estate, vehicles and personal property from one party to the other;
• the division of bank accounts, investments and other liquid assets;
• superannuation splitting orders — creating a new interest for the receiving party in the other party's fund;
• the allocation of liabilities — mortgages, personal loans, credit cards and tax debts;
• spousal maintenance — including lump-sum or periodic payments and complete releases of future claims;
• incidental orders — such as the payment of legal costs, the discharge of mortgages and the execution of documents.

The Court considers property consent orders under the framework in section 79 (married) or section 90SM (de facto) of the Family Law Act 1975 (Cth), as amended with effect from 10 June 2025. The Court considers the existing legal and equitable rights, interests and liabilities of the parties, the contributions of each party, the current and future circumstances of each party, and must be satisfied that any order altering interests is just and equitable.

Parenting Consent Orders

Parenting Consent Orders formalise arrangements for children after separation. They can deal with:

• where the child lives and the time they spend with each parent;
• communication arrangements — telephone, video calls and messaging;
• decision-making responsibilities — sometimes called "parental responsibility" — for major long-term decisions about education, health, religion and living arrangements;
• travel and relocation — including overseas travel, passport applications and change of residence;
• special occasions — birthdays, holidays and school events;
• any other matter affecting the child's welfare.

The Court will not make parenting orders unless it is satisfied they are in the best interests of the child. This is a statutory requirement, not a formality. For more on how parenting arrangements work, see our guide to parenting arrangements after separation.

Consent Orders vs Informal Agreements

Many separating couples reach informal agreement about property and children. These agreements can be verbal, exchanged in text messages or recorded in a parenting plan. The problem is that informal agreements are not directly enforceable.

If one party changes their mind, refuses to transfer property or fails to comply with agreed parenting time, the other party has no immediate remedy. They must either negotiate again, attempt mediation or commence Court proceedings — all of which is more expensive and stressful than formalising the agreement in the first place.

Informal property agreements are also vulnerable to a later claim. Without Consent Orders or a BFA, either party can apply for property settlement within the statutory time limits, even if they previously agreed to "walk away." For a detailed guide to time limits, see our article on time limits for property settlement in Australia.

Consent Orders vs Binding Financial Agreements

Consent Orders and Binding Financial Agreements (BFAs) are the two principal mechanisms for finalising property matters. They serve the same broad purpose — finality — but they differ in important ways:

• Court oversight. Consent Orders require a judicial officer to be satisfied the orders are just and equitable (property) or in the best interests of the child (parenting). BFAs do not require Court approval.
• Legal advice. BFAs require each party to obtain independent legal advice from a separate lawyer. Consent Orders do not strictly require legal advice, although it is strongly recommended.
• Enforceability. Consent Orders are enforced as Court orders. BFAs are enforced as contracts — generally through contract law remedies, though they can also be registered in Court in some circumstances.
• Setting aside. Consent Orders may be set aside under section 79A or 90SN on the grounds in those sections. BFAs may be set aside under section 90K or 90UM on the distinct grounds in those sections, which include fraud (including material non-disclosure), duress, unconscionable conduct and other statutory grounds.
• Flexibility. BFAs can deal with future events — for example, the sale of a business in five years — and can be made before a relationship begins. Consent Orders generally deal with existing property at the time of separation.
• Stamp duty and tax. Any duty concession or tax consequence on a property transfer depends on the instrument, the transaction and the applicable State or Territory law, and requires specific advice.

For a detailed comparison, see our guide to Binding Financial Agreements in Australia.

When Are Consent Orders Appropriate?

Consent Orders are appropriate where the parties have reached genuine agreement and want to make it binding, enforceable and final. They are commonly used:

• after negotiation between the parties, with or without lawyers;
• after mediation or family dispute resolution;
• where the asset pool is straightforward and the division is uncontroversial;
• where the parties want Court-backed enforcement without the cost and delay of litigation;
• where parenting arrangements are stable and both parties want certainty;
• where stamp duty relief is needed for the transfer of real estate.

Consent Orders are not appropriate where there is a significant power imbalance, ongoing family violence, concerns about disclosure or a genuine dispute about the facts. In those circumstances, litigation or a more carefully structured BFA may be preferable.

The Just and Equitable Requirement

For property Consent Orders, the Court must first be satisfied that it is "just and equitable" to make any order altering property interests at all — the threshold gateway confirmed by the High Court in Stanford v Stanford [2012] HCA 52. This gateway applies under section 79(2) (married couples) or section 90SM(3) (de facto couples) of the Family Law Act 1975 (Cth) even where the parties have reached agreement — a Court will not simply rubber-stamp consent orders without turning its mind to whether an alteration of existing legal and equitable interests is justified. In practice, where parties have genuinely separated and are dividing what was a shared asset pool, this threshold is rarely a live issue, but the Court must still be satisfied of it.

Once the threshold is met, the Court considers whether the specific division proposed is just and equitable, having regard to the matters in section 79(4) (married couples) or section 90SM(4) (de facto couples), including:

• whether the asset pool has been properly identified and valued;
• whether the financial and non-financial contributions of each party have been fairly assessed;
• the effect of any history of family violence on a party's contributions, a factor expressly recognised by section 79(4)(ca) (and section 90SM(4)(caa)) since the Family Law Amendment Act 2024 (Cth) reforms took effect on 10 June 2025;
• whether either party has wasted or recklessly diminished property, relevant to the just and equitable outcome under section 79(5) (and section 90SM(5));
• whether future needs factors — age, health, earning capacity, care of children — have been addressed;
• whether the overall division is within the range that a Court might have ordered after a hearing.

Under section 90AE, the Court also has power to make orders directed at a third party — for example, a bank, trustee or company — where necessary to give effect to a property division (such as substituting one spouse for the other as borrower on a joint loan). Consent orders that affect third-party rights in this way require the third party to be given procedural fairness and, generally, to be joined to the proceedings.

A proposed order that is wildly outside the permissible range — for example, allocating 90 percent of a long marriage's assets to one party without justification — may be rejected or referred back for further explanation.

For an explanation of how the "just and equitable" test operates in practice, see our article on whether property is always split 50/50.

The Best Interests Requirement

For parenting Consent Orders, the paramount consideration is the best interests of the child, assessed under section 60CC of the Family Law Act. Following the Family Law Amendment Act 2023 (Cth), which took effect on 6 May 2024, section 60CC no longer separates "primary" and "additional" considerations, and there is no presumption (rebuttable or otherwise) about parental responsibility or a "meaningful relationship" as a starting point. Instead, the Court applies a single, unweighted list of general considerations in section 60CC(2), which include:

• what arrangements would best promote the safety of the child and each person who has care of the child, including safety from family violence, abuse or neglect;
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each proposed carer to meet those needs;
• the benefit to the child of being able to have a relationship with each parent, and with other people significant to the child (such as grandparents or siblings), where it is safe to do so; and
• anything else relevant to the particular circumstances of the child.

Where a child is Aboriginal or Torres Strait Islander, section 60CC(3) requires the Court to also consider the child's right to enjoy their culture, including the kinship ties and cultural rights recognised by that provision. Where the proposed orders raise safety concerns or appear to favour one parent without a child-focused rationale, the Court may refuse to make the orders or may request a family report before doing so.

Filing Documents with the Court

The standard documents for property Consent Orders are:

• a joint Application for Consent Orders (Form 11);
• draft Consent Orders setting out the precise terms;
• a Financial Statement (Form 13) for each party — disclosing income, assets, liabilities and financial resources;
• a superannuation information form (obtained from the fund trustee) if a splitting order under Part VIIIB (or Part VIIIB's de facto equivalent) is sought;
• any supporting affidavits or valuations needed to explain unusual terms.

For parenting orders, the application and draft orders are accompanied by a parenting questionnaire and, where relevant, evidence of family dispute resolution attendance or an exemption certificate.

Filing fees apply. Applications for consent orders are made and managed under Chapter 5, Division 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), using the Court's eFiling system as the standard method of lodgement. Once filed, the matter is allocated to a judicial officer for review.

Do Parties Need to Attend Court?

Consent Orders are commonly made "in chambers" — a judicial officer reviews the papers and, where satisfied, makes the orders without either party attending, with sealed copies provided by email or post.

Attendance may be required where:

• the Court has questions about the terms or the fairness of the proposed orders;
• there are allegations of family violence or child abuse that require closer scrutiny;
• one party is unrepresented and the Court wants to ensure they understand the effect of the orders;
• the orders involve complex trust structures, corporate assets or overseas property.

Risks of Informal Agreements

Leaving property and parenting matters informal exposes both parties to significant risk:

• No enforcement. A verbal agreement cannot be enforced if one party refuses to comply.
• Later claims. Without Consent Orders or a BFA, either party can apply for property settlement within the statutory time limits.
• Tax and duty consequences. Transfers made without Consent Orders or a BFA may not attract stamp duty relief or the CGT rollover concessions available under family law.
• Superannuation issues. A superannuation split cannot be implemented without a Court order or a superannuation agreement under a BFA.
• Parenting uncertainty. Informal parenting arrangements leave children vulnerable to sudden changes in schedule, location or contact.

Enforcing Consent Orders

Because Consent Orders are Court orders, they are enforced through the Court's existing mechanisms.

For property orders, enforcement options include:

• writs for the seizure and sale of property;
• garnishee orders — directing a third party (such as an employer or bank) to pay money to the creditor party;
• orders for the arrest and seizure of a debtor's goods;
• orders for the transfer of property and the execution of documents;
• contempt proceedings for persistent non-compliance.

For parenting orders, contravention proceedings can result in:

• orders for make-up time or additional time;
• orders requiring the contravening party to attend a post- separation parenting program;
• community service orders;
• fines;
• in serious or repeated cases, imprisonment.

Varying or Setting Aside Consent Orders

Consent Orders are intended to be final, but limited statutory avenues exist to vary, set aside or make a further order.

Property orders (married). Section 79A(1) of the Family Law Act allows the Court to vary or set aside a property order where satisfied that:

• there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
• in the circumstances that have arisen since the order was made, it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;
• a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary or set aside the order or make another order in substitution for it;
• in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child, or the applicant with caring responsibility for the child, will suffer hardship if the Court does not vary or set aside the order or make another order in substitution for it; or
• a proceeds-of-crime order has been made covering property of a party, or a party's property is subject to a proceeds-of- crime restraining order.

Property orders (de facto). Section 90SN provides parallel grounds for de facto property orders, including miscarriage of justice, impracticability, default, circumstances of an exceptional nature relating to a child of the de facto relationship causing hardship, and proceeds-of- crime grounds. Varying, setting aside and making a further order in substitution are distinct outcomes, and each remains discretionary.

Final parenting orders. Section 65DAAA sets the current test. The Court must not reconsider a final parenting order unless satisfied that, since the final order was made, there has been a significant change of circumstances and that, in all the circumstances (having regard to the matters listed in section 65DAAA(2) and to the best-interests considerations in section 60CC), it is in the child's best interests to reconsider the order. Section 65DAAA(3) confirms the Court may consider reconsideration on its own initiative or on application, and section 65DAAA(4) preserves the ability of the parties to consent to a variation.

Practical Steps Before Applying

Before filing Consent Orders, parties should:

• exchange full and frank financial disclosure — bank statements, tax returns, superannuation statements, business valuations, trust deeds and loan documents;
• obtain legal advice on the proposed terms and their long-term consequences;
• consider the tax, duty and superannuation implications of the proposed orders;
• obtain any necessary valuations — real estate, businesses, shareholdings and superannuation interests;
• draft the orders with precision — vague or ambiguous orders are a common source of later dispute;
• consider whether parenting arrangements are practical and child-focused, not just agreeable to the adults.

Where spousal maintenance is involved, parties should also consider whether the maintenance arrangement should be time-limited, linked to specific events (such as the completion of retraining) or subject to review. For more on maintenance, see our guide to spousal maintenance in Australia. Where child support is also part of the settlement, our guide to child support assessments and private agreements explains the options for departing from the formula or formalising ongoing support.