In family law matters in Australia, consent orders play a crucial role in resolving disputes between parties. These orders formalise agreements reached by separating or divorcing couples regarding parenting arrangements and financial matters.

Consent orders are legal documents approved by a court that formalise agreements reached between you and your ex-partner after a relationship breakdown.

They may outline financial or parenting arrangements following a divorce or separation. They provide a clear, legally binding resolution to ensure both parties are on the same page and to avoid future disputes. Although they are not essential for everyone after a relationship ends, they are very commonly used in Australia for clarity.

Do I Need To Have Consent Orders In Place?

Consent orders ensure both parties stick to the agreed terms (or can be legally followed up if a breach occurs), creating protection due to their enforceability under the law. This certainty and legal recognition makes them preferable to private agreements for many individuals, as having them in place reduces the likelihood of future legal conflicts.

Once again, consent orders are not necessary for everyone, and you and your ex-partner have alternatives, such as:

  • Binding financial agreements (similar to a prenuptial, but after a relationship ends), or, 
  • Private arrangements

In some cases, if there are no children involved and no assets to divide, you may not need to do anything—but run your situation by a lawyer first, as the other party can make claims later (within the time limits) if nothing is legally finalised. 

Binding Financial Agreement vs Consent Orders 

A binding financial agreement (BFA) is a private contract between parties outlining financial arrangements post-separation. It does not require court approval but is enforceable under the Family Law Act. 

BFA’s can be an excellent option for legally informed parties who wish to keep their agreement more private, but they can be harder to legally enforce.   

Consent orders, however, are court-approved agreements that are legally binding and enforceable. Unlike BFAs, consent orders often contain parenting arrangements and are required to adhere to judicial scrutiny for fairness and child welfare. Similar to BFA’s or Limited Financial Agreements, consent orders also cover agreements like spousal maintenance and child support.

The court will review the orders to ensure they are fair and in the best interests of any children involved, as well as both parties who are separating. Once approved, the consent orders have the same legal effect as a court order made after a contested hearing. 

Consent orders provide a clear framework for the division of assets and responsibilities, offering legal protection and enforceability of the agreed terms. They help prevent future disputes by clearly outlining each party's obligations and rights, thereby providing certainty and stability in post-separation arrangements.

How Do I Make an Application for Consent Orders?

You can apply for consent orders through your lawyer or directly to the courts. Before making an application, a number of things must happen first.

1. An agreement needs to be reached, if possible, by both parties

Consent orders are based on both parties consenting to the orders being made. This doesn’t mean everyone will agree or be 100% happy with the outcome in every area, and sometimes both parties will need to compromise - especially if they both want the same things for themselves!

Both parties will need to outline how they wish care of the children to be organised, and how they would like to see assets divided. This can be done by informal conversations and reaching a private verbal or on paper agreement. It can also be done in a family mediation session, or negotiated between lawyers for each party.

From here, these agreements will need to be drawn up into a legally sound format, forming the basis of the court application.  

2. If an agreement cannot be reached, parties can either

  • Continue to negotiate between themselves, via their lawyers or in mediation / FDR settings, or,
  • Apply to have the courts decide on the outcome, with both parties presenting what they would like

If the matter goes to court and both parties haven’t reached an agreement, it’s quite possible the court will decide on the day how to make the orders. However, if there are larger issues or disputes, allegations of abuse, family violence, hidden assets, or non-financial disclosure, the matter may go to trial.

A trial is essentially, for most people, the hardest route to reaching a formal agreement, and can take years to resolve. This is because matters will go into the family court application list, and there is generally a significant backlog of matters to be heard. In some cases, it’s the only way, but it’s best avoided where possible, if both parties can reach a fair compromise otherwise. 

3. Applications and supporting documents will need to be submitted

To make an application for consent orders, you or your lawyer will need to complete and submit several forms to the Federal Circuit & Family Court of Australia, including an "Application for Consent Orders" and a proposed order detailing the agreement. 

Both parties must sign these documents. Supporting documents, such as financial statements, may be required. Once filed, the court will review the application to ensure it is fair and in the best interests of any children involved. If satisfied, the court will issue the consent orders, making them legally binding.

4. Application costs will need to be paid, as well as any associated legal costs

Unless you are eligible for reduced fees, or an exemption, you and your ex-partner will need to pay the fees for consent order applications,  and also the fees for the orders. Costs can add up if interim and final orders are being made, and you’ll also need to take into account costs for:

  • Legal advice
  • Legal documents that need to be drafted
  • Legal representation
  • Any fees for mediation or negotiations between lawyers
  • Any costs for taxation and financial advice
  • Any other costs related to reaching agreement

You can view the current fees here: 

5. Consent orders are made, and finalised

Consent orders are formally in place when both parties agree on the terms and orders have been submitted to, and approved by the court. The orders will define any ‘next steps’, such as changes in care arrangements or transfers of money, superannuation or assets.

Do I Need a Lawyer to Make an Application for Consent Orders?

While it is not mandatory to have a lawyer to make an application for consent orders, it is highly recommended. A family lawyer can provide valuable advice, ensuring that the agreement is fair and that your rights are protected. 

A legal specialist can also assist in accurately completing and filing the necessary documents. This can avoid delays due to incorrect applications. Having someone with legal expertise is particularly beneficial in complex cases involving substantial assets or contentious parenting (custody) arrangements, helping to prevent future disputes and ensuring compliance with legal requirements.

What Do Parenting Consent Orders Cover?

Parenting orders cover all of the main aspects that are relative to children, after a divorce or separation. They are similar to a ‘Parenting Plan’ but more formal, and legally enforceable.  

Most parents start with a Parenting Plan after  (usually a written agreement outlining parenting plans), and many decide to formalise them into Consent Orders,

Parenting orders usually include:

  • Living arrangements for the kids, including days and times with each parent, and drop off & pick up times.
  • Parental responsibility (decision making) - which may be shared and equal, or given to one parent only 
  • Where children will spend time on birthdays, school holidays and other holidays.
  • Details about education, health and extra-curricular activities.

What Do Financial Consent Orders Cover?

Financial consent orders cover all matters related to shared assets and debt after a relationship breakdown - including the family pets!

Some couples will make an agreement privately and action it, others may choose a Financial Agreement, and others will formalise property settlement agreements with a Consent Order.

Financial orders generally cover:

  • Who gets which items, or what % of - money, shares, houses, cars, investment property and super
  • Where any family pets will go
  • Who will pay any outstanding debts
  • How a business will be divided

Can I Change Consent Orders After They Are Made?

Final financial orders are enforceable by law and can only be varied in specific circumstances outlined in the Family Law Act. If exceptional circumstances exist, or both parties agree to the changes, it’s likely that final orders can be altered.

Under recent Family Law Amendments, which came into effect in May 2024, the courts will need to be sure that changes to parenting consent orders are:

  • Due to a significant change in circumstances
  • In the best interests of the children
  • Or - that both parents are in agreement.

Need assistance?

Please get in touch with our team today if you need any assistance or advice about consent orders, legal alternatives or any other family law matter.