The parties of parenting and property proceedings, often apply to the Federal Circuit and Family Court of Australia for ‘Consent Orders’. Consent Orders are legally binding agreements between parties, which are approved by the Court. These orders provide a clear, enforceable resolution to disputes, offering a practical solution without the need for lengthy trials or hearings.
However, just because the parties agree to an Order, does not mean the Court automatically approves them. There are five common reasons why a Court may refuse to make Consent Orders, let’s go through those in some more detail.
1. The Agreement is not “Just and Equitable”
The main reason that a Court may refuse to approve Consent Orders, is because they are not “just and equitable”.
In Property Settlements, the Court must be satisfied that the division of assets is fair and reasonable in the circumstances. The Court will look at factors such as:
– The party’s financial and non-financial contributions;
– Future needs of each party, including income, age, health and care of children;
– The overall fairness of the proposed division.
If a proposed Consent Order favors one party, whilst significantly disadvantaging the other, the Order will likely be rejected by the Court.
2. Parenting Orders are not in the best interests of the Children
In Parenting Settlements, the Court must be satisfied that the arrangements for any children, are in the best interests of the children. Parenting Consent Orders are often rejected on the following grounds:
– There is inadequate consideration and/or time of the children’s relationship with each parent;
– The proposed arrangement is unrealistic or overly disruptive to the children;
– There is a lack of clarity about parental responsibility; and
– There are ambiguous time arrangements for the children to spend time with each parent.
If a proposed Order is not in the best interests of the children, appear unsafe or
impractical, the Court will reject the Order.
3. Coercion, Pressure or Lack of Consent
The Court must be satisfied that both parties consent to the Orders. The Court may refuse to approve a consent order if:
– One party is unrepresented, and the agreement appears unfair;
– There is a history of family violence and/or control;
– Consent of one party seems uncertain or inconsistent with their financial situation or parenting status quo.
4. Insufficient or inaccurate financial disclosure
Both parties have a duty to provide full and frank financial disclosure throughout the proceedings. If one, or both parties fail to provide disclosure such as lists of all assets, debts and superannuation, the Court may refuse to grant the Order based on incomplete information.
The Court has a responsibility to ensure that both parties are making informed decisions. If the Court suspects a party’s disclosure is incomplete or misleading, the Order may be rejected.
5. Poor Drafting or Incomplete
To be approved, Consent Orders need to be clear, specific and capable of being enforced. Consent Orders will be refused if the orders are ambiguous, incomplete, confusing or inconsistent. The Court also requires that the required forms are complete, signed and witnessed correctly to be approved,
ensuring the integrity of the agreement and its enforceability.
Consent Orders are typically an efficient and cost-effective way to finalise matters. However, they must meet the Court’s requirements. Whether you’re just starting to think about your options or are ready to take action, we’re here to help you navigate the legal steps with confidence.
To ensure your Consent Orders are approved, speak to our Family Law team today on (02) 4228 0066 or contact us here, or reach out through our partners at Auslex. Let’s discuss how we can assist you in reaching a fair and lasting resolution.
