Thinking of applying for consent orders in your family law matter? If you and your ex are in agreement on how to work out parenting and/or financial matters after separation, it’s a great idea to formalise your decisions with consent orders. And the making of consent orders is welcomed by the courts, because it keeps you out of litigation, saving everyone time, money and angst.
But even if you and your ex have agreed on how to resolve your family law dispute, it’s important to know that this isn’t a guarantee that a court will sign off on them. The courts can decline to accept consent orders for a number of reasons. Read on to find out what typically sees consent orders rejected and what you can do if this happens to you.
The courts will not simply “rubber-stamp” an agreement you have privately reached with your ex that you wish to be formalised. When a court registrar reviews your application for consent orders and its accompanying minute of consent, the documents will be carefully scrutinised and assessed as to whether property settlement consent orders are “just and equitable”, and parenting consent orders are in the best interests of the children. The registrar will apply the Family Law Act as it is relevant to the parenting and property matters in your proposed consent orders, considering the nature and effect of your draft provisions.
Why does the court sometimes reject consent orders?
Common reasons for receiving rejected consent orders include:
- Your financial orders were not considered “just and equitable”. The agreement you reach with your ex needs to be fair in the circumstances. If a court were to determine orders itself, the outcome would fall within a range of possible outcomes, and it’s necessary for your consent orders to also fall within such a range. The outcome needs to take into account things like the contributions of each party and their future needs, in the same way that a property settlement would be arrived at by a court.
- Your parenting orders were not considered to be in the children’s best interests. Under the Family Law Act, there are numerous considerations courts must take into account when making orders, and these factors will be just as relevant to consent orders. Simply reaching agreement with your co-parent is not sufficient to satisfy the courts that your consent orders are in your children’s best interests, so make sure you familiarise yourself with what this means before drafting orders.
- Your orders were not drafted in a way that would enable them to be legally enforceable.
- You haven’t filled out the forms correctly. This might include not completely filling out relevant sections, failing to have affidavits correctly sworn and witnessed, or simply not being very precise with information included.
- Your financial orders included superannuation orders that did not follow the prescribed procedure. Superannuation splitting orders require specific steps to be undertaken before the courts will approve the request.
- Your orders did not contain appropriate contingency clauses (if applicable).
- Your orders did not comply with the Family Law Act 1975.
- Your proposed application for consent orders is not consistent with your proposed minute of consent orders (these documents need to align with each other).
- Your minute of consent orders hasn’t been drafted in a way that makes sense or can give effect to what you wish to achieve.
- You didn’t comply with a jurisdictional requirement (e.g. failing to provide an affidavit as to jurisdiction if you are de factos).
- Your application is out of time. If the deadlines for making an application have passed (within a year of divorce or within two years of separation for de factos) then you must first obtain leave (permission) of the court to put in an application for consent orders.
What if your consent orders are rejected?
The court may advise you, after considering your proposed consent orders, that they have not been approved. You may receive a requisition letter from the registrar informing you that your proposed consent orders are not enforceable and you may be asked to provide more information, clarification or explanation about why the court should approve your proposed orders. You may be asked to file a further affidavit explaining why you believe your consent orders should be approved. You may also be ordered to attend a hearing. Read the registrar’s letter carefully and ensure you follow the instructions on what you need to do.
If your proposed consent orders have been rejected by the court, you will be advised to seek legal assistance before lodging amended documents to the court. Your family lawyer can assist with determining the steps you should take to ensure your amended orders are accepted. This will include fixing any drafting mistakes, making suggestions for inclusions which you may have overlooked or failed to consider, and ensuring you do not include unnecessary information.
Getting it right the first time
Although it’s possible to draft your own consent orders, consider enlisting the help of a family lawyer from the beginning of the process, so that you are submitting clear, unambiguous, enforceable and appropriate documents in the first place. This will give you a much better chance of having your consent orders approved the first time around, avoiding making mistakes, while also protecting your rights and ensuring you are making informed decisions.
If you would like help with preparing consent orders or responding to a rejection letter from the courts, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 4200.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
You can read the Federal Circuit and Family Court of Australia’s fact sheet about consent orders here.