One of the most cost-effective and efficient way in resolving Family Law matters is through Consent Orders, if there is an agreement between the parties.
When separated parties (married or de facto) reach a settlement, they may formalise their settlement in the form of written consent orders which are submitted to the Family Court. Provided that the consent orders are approved by the court, final consent orders will carry the same weight as court orders made following a contested application in the court. Essentially, consent orders allow the parties to skip the contested court process and expedite their legal matters. It is possible to obtain consent orders for parenting, contested financial proceedings and spousal maintenance separately or jointly.
In order to start the process for obtaining consent orders, the parties must first reach a settlement. This can be achieved by agreement, negotiation or mediation. The parties may use legal representatives to facilitate a settlement. Once settlement is reached, the parties or their legal representatives must submit to the Family Court of Western Australia:
- an application for consent orders (known as a Form 11);
- a draft of the proposed orders (known as a minute of consent orders);
- any previous court orders;
- any required supporting documentations (such as a marriage certificate or an affidavit outlining the circumstances of the de facto relationship); and
- the prescribed filing fee.
Once these documents are lodged at the Family Court, the presiding Magistrate or Registrar will decide whether the orders are fair and equitable for financial proceedings or whether the orders are in the best interests of the children involved for parenting proceedings. The Magistrate or Registrar will then either approve or reject the proposed orders. The parties do not attend the court for this decision. If the consent orders are approved, they will be sent back to the parties as final court orders. Final consent orders carry the same weight as any other court orders and the parties are legally obliged to abide by them. If the consent orders are rejected, a letter of requisition will be sent to the parties detailing why the consent orders were rejected and what requirements must be met in order to obtain approval.
An application for consent orders must be filed within 12 months of a divorce order or within 2 years of the breakdown of a de facto relationship. An application for consent orders may still be made outside of these times if leave from the court is obtained. A suitable reason must be provided as to why the application is being made out of time. Leave may be requested as one of the orders in the application.
Consent orders significantly expedite family law proceedings by allowing the parties to skip the contested court process. Generally contested family law proceeding may take many months and even years to reach a resolution. Alternatively, it may only take as little as a few weeks up to a few months to obtaining final consent orders. Essentially, the mechanism of consent orders allows the parties to formally resolve their legal matters by never formally attending court. Further, consent orders may be made at any time during legal proceedings and may also be applied for before mandatory mediation for parenting matters and pre-action procedures for financial matters.
Apart from expediting legal proceedings, consent orders can substantially reduce the costs and resources associated with family law proceedings. These resources can include time, money and the well-being of the parties. Family law proceedings can be very costly and run for considerable amounts of time until resolution. As such, the costs of legal proceedings can significantly decrease the monetary amounts the parties may receive upon resolution.
The provision of final consent orders can also provide a solid platform for the parties to base all future dealings upon. This can put the parties in better positions to deal with any future issues that may arise and also facilitate their continued relationship as parents.
Final consent orders also carry the same legal weight as all other court orders. This means that the parties must comply with final consent orders in the same manner as they would with other court orders as contravention of final consent orders carry the same penalties as contravention of other court orders.
Consent orders are final and are difficult to vary or set aside. There are very limited circumstances in which final consent orders may be varied or set aside as the court deems final consent orders as “final” and an end to all further legal proceedings. Consent orders are only available to parties who have separated and cannot be used to govern parties who are still married or in a de facto relationship.
In attempts to save on legal costs, parties will often want to know if they can make an application for consent orders themselves. The parties are able to negotiate the terms of settlement amongst themselves without the assistance of a lawyer. Further, the documents required do not need to be signed in the presence of lawyers. However, should the parties not receive independent legal advice prior to signing consent orders, they place themselves in grave risk of entering into an agreement which they do not fully understand. Consequently, their entitlements and legal rights may not be met. This can lead to serious adverse effects upon their future circumstances and plans. It is therefore highly recommended that independent legal advice is sought when considering consent orders as an option to finalise a property settlement, spousal maintenance issues or a child-related dispute.