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What Is a Consent Order? A Complete Guide to Consent Orders in Australian Family Law
Separation is one of the most difficult experiences a person can go through. Once the emotional dust begins to settle, the legal questions start to surface: who keeps the family home? How will the children spend their time? What happens to superannuation? If you and your former partner have reached an agreement on these matters, […]
What Is a Consent Order? A Complete Guide to Consent Orders in Australian Family Law
Separation is one of the most difficult experiences a person can go through. Once the emotional dust begins to settle, the legal questions start to surface: who keeps the family home? How will the children spend their time? What happens to superannuation? If you and your former partner have reached an agreement on these matters, a consent order is the legal mechanism that turns that agreement into something the law will enforce.
At Aylward Game Solicitors, our Brisbane, Gold Coast, and Sunshine Coast family law team, including Accredited Specialist Family Lawyer Ian Field and Solicitor Emma MacDonald, helps separating couples formalise their arrangements through consent orders every day. This guide explains everything you need to know.
What Are Consent Orders in Australian Family Law?
A consent order is a legally binding court order made by the Federal Circuit and Family Court of Australia (FCFCOA) that formally records an agreement reached between two separating parties. Unlike a verbal agreement or even a written private arrangement, a consent order carries the full force of the law.
The term consent reflects the fact that both parties agree to the terms rather than having a judge impose a decision after contested proceedings. However, the court still reviews the proposed orders before making them. The court will only approve consent orders if it is satisfied that, in financial matters, the arrangement is just and equitable, and in parenting matters, the orders are in the best interests of the child.
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Consent orders are available to married couples, de facto partners, and same-sex couples throughout Queensland and the rest of Australia.
Types of Consent Orders
Not all consent orders cover the same ground. Understanding which type applies to your situation is essential before you begin drafting an application.
Property and Financial Consent Orders: These orders formalise how the family home, investment properties, bank accounts, business interests, debts and other assets will be divided between separating parties. They can also address who is responsible for existing liabilities, such as joint loans or credit cards.
Superannuation Splitting Consent Orders: Superannuation is treated as property under Australian family law, but splitting it requires specific technical wording. A consent order can direct that a percentage or dollar amount of one party’s superannuation be transferred or split into the other party’s fund, without the receiving party needing to wait until retirement to access their entitlement (subject to normal superannuation preservation rules).
Parenting Consent Orders: These orders set out where children will live, how much time they will spend with each parent, how major long-term decisions (education, health, religion) will be made, and communication arrangements between the children and each parent.
Spousal Maintenance Consent Orders: Where one party requires ongoing financial support from the other after separation, either due to income disparity, health, or caring responsibilities for young children, this can be formalised through spousal maintenance orders, either as a lump sum or periodic payments.
Combined Property and Parenting Orders: Many separating couples choose to resolve both their property and parenting matters in a single application, provided both sets of arrangements have already been agreed. This is often the most efficient path, since it requires only one filing fee and one court review.
Understanding what a consent order in each of these contexts helps separating couples identify exactly which orders they need, rather than assuming a single generic document will cover every aspect of their separation.
Consent Order Applications: What Does the Process Look Like?
Applying for consent orders does not require you to attend a court hearing. The process is largely administrative, though it must be done correctly to avoid delays or rejection.
There are generally three documents required when lodging an application for consent orders:
- The Application for Consent Orders form: This provides the court with details about each party’s financial circumstances, living arrangements, and any other relevant information needed to assess the proposed agreement. Application for consent order PDF
- The Proposed Orders: This document sets out the actual terms of the agreement you want the court to formalise. Each order must be clearly numbered, every page signed by both parties, and the language must be precise and legally sound.
- The Notice of Child Abuse, Family Violence or Risk: Required where parenting arrangements are being formalised. Consent orders kit PDF
Private Agreements vs Consent Orders
| Aspect | Private Agreement | Consent Order |
|---|---|---|
| Legal enforceability | None | Fully enforceable by the court |
| Court review | No review or oversight | Reviewed for the just and equitable standard (property) or best interests (parenting) |
| Finality | Can be revisited or ignored at any time | Property orders are very difficult to overturn |
| Protection if circumstances change | None | Court has powers to enforce, vary in limited cases, or penalise breaches |
| Cost | Free, but risky | Filing fee plus legal drafting costs |
Binding Financial Agreements vs Consent Orders
| Aspect | Consent Order | Binding Financial Agreement (BFA) |
|---|---|---|
| Court involvement | Filed with and approved by the FCFCOA | Private contract; not filed with or reviewed by the court |
| Legal test applied | Must be just and equitable | No court assessment of fairness at the time of signing |
| Independent legal advice | Recommended but not compulsory | Compulsory for both parties, from separate solicitors |
| Timing | Can only be made after separation | Can be made before, during, or after a relationship |
| Ease of overturning | Very limited grounds (fraud, non-disclosure) | Can be set aside for fraud, duress, unconscionable conduct, or hardship affecting a child |
| Superannuation splitting | Yes | Yes, if drafted correctly |
| Privacy | Filed with the court; not a matter of public record for parties, but court-reviewed | Entirely private between the parties |
What Are the Advantages of Having Consent Orders?
Many separating couples ask why they need consent orders when they have already reached an agreement. The answer is straightforward: an informal agreement, no matter how well-intentioned, offers no legal protection if circumstances change or someone later changes their mind.
The key advantages of consent orders include:
Legal enforceability: Once sealed by the court, consent orders are enforceable in the same way as any other court order. If your former partner breaches the order, you have clear legal remedies available.
Finality for property matters: Once a property consent order is made, the grounds for setting it aside are very limited. It provides genuine finality, preventing future financial claims years down the track.
Stamp duty exemptions: In Queensland, transferring property pursuant to a consent order can attract stamp duty exemptions that would otherwise not apply, resulting in significant financial savings.
Cost-effectiveness: Reaching an agreement and formalising it through consent orders is substantially cheaper and faster than contested court proceedings, which can take years and cost tens of thousands of dollars.
Peace of mind: Both parties can move forward knowing their arrangements are legally settled.
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Key Factors to Consider for Parenting Consent Orders
Parenting consent orders formalise arrangements about where children live, how much time they spend with each parent, and how major decisions about their lives are made. When preparing for these orders, you should be ready to address:
Current living arrangements and proximity: Where each parent lives, and the practicalities of the children moving between two homes, are central to any parenting arrangement.
The children’s health and education: Details about existing medical needs, the schools children attend, and any special requirements should all be addressed.
Each parent’s capacity: The court is focused on the child’s best interests. Each parent’s ability to meet the child’s needs emotionally, physically, and practically is relevant.
Family violence and risk factors: Any history of domestic violence, substance misuse, or other risk factors must be disclosed and carefully considered. Emma MacDonald, who has direct experience assisting clients in domestic violence proceedings, understands the sensitivity and importance of these issues.
Parental responsibility: Consent orders can address whether parents share equal parental responsibility for major long-term decisions, or whether one parent holds sole responsibility in particular areas.
It is important to note that while child support is a related consideration, the Family Court cannot make a consent order regarding child support; this is handled separately through Services Australia.
Who Can Apply for Consent Orders?
Consent orders are available to:
- Married couples who have separated (including those who have not yet applied for divorce)
- De facto couples (including same-sex de facto couples) who have separated
- Parties who are already divorced but need to finalise outstanding property matters
- Parties seeking to vary or discharge existing family law orders
Both parties must consent to the proposed orders. If genuine agreement cannot be reached, consent orders are not available, and the matter may need to proceed to mediation or, ultimately, litigation.
How Do I Get Consent Orders in Australia?
The process of obtaining consent orders in Queensland and across Australia follows these steps:
Step 1: Reach an agreement with your former partner on all relevant matters. This may happen through direct negotiation, with the assistance of lawyers, or through formal family dispute resolution or mediation.
Step 2: Prepare the documents. This includes drafting the proposed orders in precise legal language, completing the application form, and compiling all required financial disclosure documents.
Step 3: File the application electronically through the Commonwealth Courts Portal. The person who lodges the application is listed as the applicant.
Step 4: Court review. A Deputy Registrar reviews the application to ensure the proposed orders comply with the Family Law Act. If satisfied, the orders are sealed. If further information is needed, a requisition is issued.
Step 5: Orders made and enforceable. Once sealed, the consent orders carry the same legal weight as orders issued by a judge after a full hearing.
Enforcing Consent Orders
Breaches of parenting orders are governed by Division 13A of Part VII of the Family Law Act 1975. Under section 70NAC, a person contravenes a parenting order if they intentionally fail to comply with it, make no reasonable attempt to comply, or intentionally prevent another person bound by the order from complying. A respondent may avoid penalty if they can establish a reasonable excuse under section 70NAD. For example, a genuine belief that non-compliance was necessary to protect the health or safety of the child.
Contraventions filed with the FCFCOA are heard through the National Contravention List and are assessed on a three-tier basis: whether a reasonable excuse applies, whether the breach is less serious, or whether it is more serious. Outcomes can range from make-up time and parenting programs through to fines, bonds, or, in the most serious and repeated cases, imprisonment.
It is worth noting the distinction between a Contravention Application, which seeks to penalise a breach, and an Enforcement Application, which simply seeks compliance with the existing order without punishing the other party. Your lawyer can advise which pathway best matches what you are actually trying to achieve.
Enforcing Property and Financial Consent Orders
Where a party refuses to transfer property, pay an agreed sum, or otherwise comply with a financial consent order, the affected party can apply to the court for enforcement under Part XIIIA of the Family Law Act 1975. The court has broad powers here, including ordering the sale of property, appointing a third party to sign documents on a non-compliant party’s behalf, or, in serious cases, finding the breaching party in contempt of court.
Because enforcement proceedings add further cost and delay to what should already be a resolved matter, well-drafted orders from the outset, prepared by an experienced family lawyer, remain the best protection against needing to enforce them at all.
What Happens If the Court Doesn’t Approve the Orders?
If the Deputy Registrar is not satisfied with the proposed orders, they will issue a requisition requesting additional information, corrections, or revised documents. Parties must respond within the timeframe specified. Common reasons for requisitions include:
- Incomplete financial disclosure
- Ambiguous or poorly drafted orders
- Proposed parenting arrangements that do not clearly serve the children’s best interests
- Missing signatures or incorrect documentation
Can Consent Orders Be Changed Later?
Once sealed by the court, consent orders are legally binding and generally difficult to change. However, there are limited circumstances in which they may be varied or set aside:
For property orders: the grounds for setting aside property consent orders are narrow and include fraud, duress, failure to disclose assets, or a significant change in circumstances that renders it impractical to carry out the terms of the order. Both parties agreeing to new consent orders is the most straightforward path to variation.
For parenting orders: These can be varied if there has been a significant change in circumstances since the orders were made, or if both parents agree to a variation and apply for new consent orders.
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Does a Consent Order Expire?
Property consent orders do not expire once they are made; they remain in force and enforceable. Parenting orders, by contrast, are typically framed around the children’s ages and circumstances and naturally evolve as children grow. Orders may, for example, make specific provision for arrangements as children reach secondary school age or approach adulthood.
Timeframe and Time Limits
One of the most critical and frequently overlooked aspects of consent orders is the time limits that apply to property and financial matters.
If you were married: You must apply for financial consent orders within 12 months of your divorce becoming final. If you are separated but have not yet applied for divorce, you can apply at any time.
If you were in a de facto relationship: You must apply for financial consent orders within two years of the date of separation.
If you have missed these deadlines, you are not automatically prevented from applying, but you will need to seek leave of the Court to file the application out of time. This adds complexity and expense to the process, and there is no guarantee the court will grant leave.
Do I Need a Lawyer for a Consent Order?
Strictly speaking, you are not legally required to have a lawyer to apply for consent orders. However, the risks of proceeding without legal advice are significant:
- Poorly drafted orders may be rejected by the court
- You may inadvertently accept terms that are unfair or that don’t reflect what you actually agreed to
- Technical errors can render orders ambiguous or unenforceable
- You may overlook assets, liabilities, or legal entitlements that should have been included
- Without proper financial disclosure, orders can later be set aside
How Can a Lawyer Help With Consent Orders?
An experienced family lawyer provides far more than just document preparation. When you work with Ian Field or Emma MacDonald at Aylward Game Solicitors, you can expect:
- A clear explanation of your legal rights and entitlements under the Family Law Act
- An honest assessment of whether the agreement you’ve reached is just and equitable
- Precise drafting of your proposed orders to ensure they are enforceable and unambiguous
- Advice on stamp duty implications and superannuation splitting requirements
- Guidance on disclosure obligations to ensure the orders cannot later be challenged
- Assistance with requisitions if the court requests further information
- Ongoing support throughout the process, with regular communication and plain-English updates
Conclusion
A consent order is one of the most important legal documents a separating couple can obtain. It transforms a private agreement into a legally enforceable court order providing certainty, finality, and protection for both parties as they move forward with their lives.
Whether you need to resolve property matters, formalise parenting arrangements, or address superannuation splitting, the team at Aylward Game Solicitors is here to help. Serving clients across Brisbane, Gold Coast, and Sunshine Coast, we combine decades of family law experience with a genuine commitment to clear communication and practical outcomes.
Don’t leave your future to chance. Contact our team today on 07 3236 0001 or visit familylaw.aylwardgame.com.au to arrange a confidential consultation with Ian Field, Emma MacDonald, or one of our experienced family law solicitors.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Frequently Asked Questions
What is a consent order in family law?
A consent order is a legally binding court order made by the Federal Circuit and Family Court of Australia that formally records an agreement between separating parties about property, finances, or parenting arrangements. It carries the same legal force as an order made after a contested hearing.
How much does a consent order cost in Australia?
Court filing fees for property consent orders are currently around $1,351. Legal fees for preparation typically range from $2,000 to $5,000 or more, depending on complexity. This is considerably less expensive than contested court proceedings.
How long does a consent order take to be approved?
Once correctly filed, consent orders are typically reviewed and approved within six to eight weeks by a Deputy Registrar of the Federal Circuit and Family Court of Australia.
Can consent orders be changed after they are made?
Property consent orders are very difficult to vary and can only be set aside in limited circumstances, such as fraud or material non-disclosure. Parenting consent orders can be varied if there has been a significant change in circumstances affecting the children’s best interests.
What happens if someone breaches a consent order?
Breaching a consent order is a serious matter. The affected party can apply to the court for enforcement. Penalties can include additional orders, fines, and, in extreme cases, imprisonment for contempt of court.
Do I need a lawyer to apply for consent orders?
You are not legally required to have a lawyer, but it is strongly recommended. Poorly drafted orders can be rejected, create ambiguity, or fail to protect your interests. Both parties obtaining independent legal advice significantly reduces the risk of problems.
What is a financial consent order example?
A typical financial consent order might provide that the family home is transferred to one party, superannuation is split in a specified percentage, all joint debts are assigned to one party, and that no further property claims can be made between the parties, creating a clean financial break.
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