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.

For a detailed walk-through of how the property pool is identified and divided, see our guide to the four-step property settlement process.

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 are harder to set aside. BFAs are more vulnerable to challenge on grounds including fraud, duress, unconscionable conduct and non-disclosure.
• 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 relief. Both Consent Orders and BFAs can provide stamp duty relief on the transfer of property in most Australian jurisdictions, provided the formal requirements are met.

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 be satisfied the proposed orders are "just and equitable" within the meaning of section 79 of the Family Law Act 1975 (Cth). This does not mean the Court will rewrite the parties' agreement, but it does mean the Court will examine whether the proposed division falls within the permissible range of outcomes.

The Court typically considers:

• whether the asset pool has been properly identified and valued;
• whether the contributions of each party have been fairly assessed;
• 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.

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. The Court must be satisfied the proposed arrangements are consistent with the principles in Part VII of the Family Law Act, including:

• the benefit to the child of having a meaningful relationship with both parents;
• the need to protect the child from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence;
• the views of the child (depending on age and maturity);
• the practical difficulty and expense of a child spending time with each parent;
• the capacity of each parent to provide for the child's intellectual, emotional and developmental needs.

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 if a splitting order 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. The Court's eFiling system is the standard method of lodgement. Once filed, the matter is allocated to a judicial officer for review.

Do Parties Need to Attend Court?

In most cases, no. Consent Orders are made "in chambers" — the judicial officer reviews the papers and, if satisfied, makes the orders without either party attending. The parties receive sealed copies 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 they are not absolutely immutable.

Property orders can be set aside under section 79A of the Family Law Act on limited grounds:

• there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
• the orders are impracticable to carry out;
• a party has defaulted in carrying out an obligation, and it is just and equitable to vary or set aside the orders;
• circumstances have arisen since the orders were made that make it just and equitable to vary them;
• a proceeds-of-crime order has been made affecting the property.

Parenting orders can be varied where there has been a material change in circumstances and the variation is in the best interests of the child. The threshold is deliberately high — the Court does not want parents re-litigating parenting arrangements every time there is a minor disagreement.

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, the range of likely outcomes and the 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.

Obtaining Advice

Consent Orders are a powerful and cost-effective tool for finalising family law matters, but they are not a do-it-yourself solution. Poorly drafted orders, inadequate disclosure or agreements that fall outside the Court's permissible range can waste time, money and goodwill.

At Parke Lawyers, our family law team advises on the drafting, negotiation and filing of Consent Orders for property and parenting matters across Victoria. Where a divorce application is also required, our guide to how to apply for divorce in Australia sets out the procedural steps that often run in parallel.