What are consent orders?

If both parties have reached agreement about parenting and/or financial/property arrangements and want to formalise the agreement to make it binding, you can apply to the Family Court of Australia for consent orders. Consent orders can also be used to vary or discharge existing family law orders. Please read the following information in relation to parenting and property and financial matters before you proceed. The Family Law Act 1975 requires the courts to regard the best interests of a child as the most important consideration when making parenting orders. You should also read financial cases principles that the court considers to settle financial disputes. The court has to be satisfied that the agreement is just and equitable and/or in the best interests of the child/ren before they can make a consent order.

Seeking legal advice

It is important to obtain some independent legal advice in relation to your situation. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. A lawyer may also be able to help you reach an agreement without going to court. The court is unable to provide legal advice because to do so could seriously compromise the court's ability to impartially determine a case if a person then applies to the court seeking orders.

The Family Relationship Advice Line (FRAL) can help you with free legal advice and information about services available to assist anybody with family relationship issues - call 1800 050 321 (+61 7 3423 6878 if you are overseas). You should advise FRAL that you are seeking legal advice and they will take your details and a lawyer will call you back. FRAL will advise you of a timeframe on the call back, you should advise if it is urgent.

Alternatively, the Australian government funds a range of legal assistance services that may be able to assist you, including Legal Aid Commissions and individual Community Legal Centres, which offer free and low cost advice. Information to assist with finding legal services is available from the Attorney-General's Department website.

Are there any time restrictions in filing consent orders for property or financial orders?

Application can be filed any time after separation but should to be filed within 12 months of a divorce or 2 years of the breakdown of a de facto relationship (s44 of FLA) if parties wish to seek orders from the court.

If you are seeking orders for property settlement or maintenance and more than 12 months has lapsed since your divorce became final, you should read and consider s44(3) of the Family Law Act. This may apply and if so, you must consent to the Court making the proposed property and maintenance orders. If filing beyond the time frame, you need to seek leave to file the application. Leave can be requested as one of the orders sought.

If your de facto relationship broke down more than two years before the date of filing this application, you will have to file by post or at a Family Law Registry (see Unable to eFile below). If you are seeking for property settlement/maintenance orders, you should also file an Application in a Case + Affidavit seeking the Court’s permission to bring an application for property settlement/maintenance seeking leave for the application to be heard out of time.

What you need to consider

It is important that you understand the meaning and effect of the orders you are seeking. Even if you have decided to make your application without the help of a lawyer, you should obtain independent legal advice about the effect and consequences of the order you propose.

  • If you are seeking orders concerning children you should read and consider sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act.
  • If you are seeking property orders in relation to a marriage, you should read and consider sections 75 and 79 and Part VIIIB of the Family Law Act. If you are seeking financial orders as a party to a de facto relationship which has broken down, you should read and consider sections 90SK, 90SL, 90SM and Part VIIIAB of the Family Law Act. If you are seeking an order or injunction binding a third party you should read and consider Part VIIIAA and if a party to a de facto relationship, you should also read and consider section 90TA of the Family Law Act.
  • If you are seeking spouse maintenance orders, you should read and consider sections 72, 74 and 75 of the Family Law Act.
  • If you are seeking de facto partner maintenance orders, you should read and consider sections 90SB, 90SD, 90SE and 90SF of the Family Law Act.
  • If you are seeking orders for property settlement or maintenance and more than 12 months has lapsed since your divorce became final, you should read and consider s44(3) of the Family Law Act. This may apply and if so, you must consent to the Court making the proposed property and maintenance orders.

If you do not consent to the Court making the proposed property and/or maintenance orders, an Application for Consent Orders is not the appropriate form. You should file an Application in a Case seeking the Court’s permission to bring an application for property settlement/maintenance.

All of these sections and Parts of the Family Law Act can be accessed at www.legislation.gov.au

What if there is an existing order?

If the orders you seek are intended to vary or discharge an existing order which was made in any other Court or Family Court registry, other than the registry in which the Application for Consent Orders is to be filed, then sealed copies of the existing order must also be filed.

Setting out your orders

The orders you seek concerning your children, property, spouse or de facto partner maintenance will depend on the circumstances of your family. You should seek legal advice about what orders to apply for.

Generally, Consent Orders that can be made by a court fall into two categories – parenting orders and financial orders.

NOTE: parenting and property/financial orders can be sought in the same application.

Set out each order sought in a separate paragraph and number each paragraph. Each page should be signed by each party and dated. Use the template Application for Consent Orders - proposed orders template provided by the Court as a guide to setting out the proposed orders.

Select the relevant categories below for more information:

These include orders relating to:

  • The person with whom the child lives – including any shared arrangements.
  • The times that a child may spend with – that a child may spend with a parent with whom they are not living, or anyone else who plays an important part in their life, such as a grandparent and can be either face-to-face, or by phone, email or letters.
  • Child maintenance – for children not covered by the Child Support (Assessment) Act. If you are unsure contact the Child Support Agency.
  • Any other aspect of parental responsibility – this may include the day-to-day care, welfare and development of a child, religion, education and sport.

These include orders relating to:

  • Spouse maintenance – financial support for a husband or wife or former husband or wife.
  • De facto partner maintenance – financial support for a party to a de facto relationship which has broken down (provided the requirements of section 90DK are met).
  • Property – how your property, superannuation, financial resources and liabilities should be shared between you (in the case of a de facto relationship which has broken down, provided the requirements section 90SK are met).

There are special requirements where you are making an application for orders for property settlement and either party has a superannuation interest.
If you are seeking a splitting order in relation to a superannuation interest in accordance with Section 90MT of the Family Law Act:

  • You must attach proof of value in relation to that superannuation interest.
  • You must calculate the value of the superannuation interest and if the Family Law (Superannuation) Regulations 2001 provide a method for calculating the value then that method must be used.
  • You must consider the taxation consequences of the order.
  • Where a base amount is allocated then that amount cannot exceed the value of the interest (see Section 90MT(4)).

If you are seeking an order that imposes an obligation on the Trustee of the superannuation plan you must satisfy the court that the Trustee has been accorded procedural fairness in relation to the making of the order.

The court requires that at least 28 days before filing the application, you must serve written notice of the following matters on the Trustee of the superannuation plan in which the superannuation interest is held:

  • the terms of the orders that will be sought from the Court to bind the Trustee
  • that the Trustee may object to the orders sought by giving written notice within 28 days of receiving the notice.

If the Trustee does not object to the orders sought within 28 days after receiving the notice you may file the application.

The proposed orders by consent must contain a provision that each party and the Trustee have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.

You should seek legal advice, and where necessary accounting advice about these requirements.

For more information please see the Superannuation section

There are special requirements where you are making an application for orders for maintenance and/or property settlement as a party to a de facto relationship.

You must complete the part of the application that establishes that you are entitled to apply and meet certain geographical requirements.

For more information see: De facto relationships 

If your de facto relationship broke down more than two years before the date of filing this application, an Application for Consent Orders is not the appropriate form. You should file an Application in a Case seeking the Court’s permission to bring an application for property settlement/maintenance.

Other documents you may need to file

If there has been no other case involving you at the Family Court registry in which your Application for Consent Orders is to be filed you must also file a copy of the certificate of registration of de facto relationship or other proof (if you were a party to a de facto relationship which is registered under a prescribed law of a state or territory and are seeking financial or de facto partner maintenance orders).

  • Child maintenance for children covered by the Child Support (Assessment) Act, that is, those under 18 who were born after 1 October 1989 or whose parents separated after that date—this is handled by the Child Support Agency which can be contacted on 131 272 for the cost of a local call.
  • Declarations about the existence of a de facto relationship.
  • Medical procedures.
  • Orders under cross vesting laws.
  • A parenting order in favour of a person who is not a parent, grandparent or other relative under Section 65G of the Family Law Act.

You should seek legal advice before proceeding any further with any of these types of applications.

How do I choose which court to file my application in?

Consent orders applications can only be filed in the Family Court of Australia.

Filing an application with the Court

Helpful hint: For more information about eFiling applications on the Commonwealth Courts Portal see How do I eFile?

The Court recommends electronically filing (eFiling) applications. This allows you, within a secure website, access to information about your court file, the ability to eFile a range of applications and supporting documents, and to pay the filing fee, online 24/7. For information on eFiling your application click on eFile below.

You cannot eFile if:

  • you do not have access to the required technology,
  • you are unable to pay by credit/debit card online (see Helpful Hint under Unable to eFile)

If for any reason you cannot eFile the application click on Unable to eFile below.

The Family Law Amendment (2018 Measures No. 1) Rules 2018 came into effect on 1 March 2018 and amended some of the requirements when applying for Consent Orders. Changes to the eFiled forms are expected in due course. The Court will continue to accept eFiled applications using the old interactive online form until 1 January 2019.

Choosing the guided or unguided process

Guided process

Selecting the guided option provides you with procedural assistance when answering the application question. Based on your answers you may be presented with help text and links to fact sheets relevant to that question. You will also be directed to upload supporting documents prior to submitting the application.

Unguided process

Selecting the unguided option allows you to upload a PDF version of a completed application document. A small number of online questions are required to create your file. The unguided process offers limited procedural guidance and is designed for someone who is familiar with Family Law proceedings. Using this process means you understand and accept the responsibility of ensuring the correct information and proper documents are provided. If you wish to seek fee exemption due to financial hardship, you need to use this process.

You will need to file the following:

NOTE: parenting and property/financial orders can be sought in the same application.

Follow the instructions on the Application for Consent Orders Kit to help you file your application. You will need to file the following:

NOTE: parenting and property/financial orders can be sought in the same application.

Follow the instructions on the Application for Consent Orders Kit to help you file your application. You will need to file the following:

Documents (original + a copy for each party to the matter) can be filed at a family law registry along with the filing fee (see below). You should have all your documents signed, witnessed (if required) and photocopied before you file.

NOTE: parenting and property/financial orders can be sought in the same application.

Helpful Hint: Did you know that you can purchase a reloadable prepaid Visa debit card from the post office for $6.95.

Are there any fees?

There is a $165 fee (or $0 if you are eligible for an exemption of fees - only the applicant is required to be eligible for exemption)

If you are eligible for an exemption general, you will be required to upload copies of documentary evidence e.g. health care card (both sides) after completing step 1.

If you are not eligible, but payment of the fee will cause you financial hardship you can complete and upload the Application for exemption from fees – financial hardship. Your application will then be considered by the court. For further information, see the publication Guidelines for exemption of court fees.

If you have eFiled your application you will be required to pay the filing fee by credit/debit card (visa/mastercard) when you complete the online interactive application. If you file your application by post or in person go to Making payments to the courts for more information.

Helpful Hint: Did you know that if you do not have a credit/debit card you can buy a pre-paid debit card from the Post Office for a nominal fee? For more information on Load & Go Reloadable pre-paid VISA cards visit the Australia Post website.

What will happen after I have filed documents with the Court?

If you eFiled an application for consent orders, you will be able to go into the Documents filed section and print a sealed copy for your record. Go into the Image of the Documents Filed button  section and click on the Adobe pdf logo  icon to print out a sealed copy. The application will be considered and the parties will be notified if the consent orders are made by receipt of the sealed orders. If the orders are not made, the parties will receive notification as why the orders were not made. If you wish to follow up on your consent orders application you should email the family law registry where the application was filed. If you receive notification that the consent orders have not been made by the Court you should obtain legal advice.

If you posted or filed an application for consent orders at a registry, each party will receive a sealed copy of the photocopied application back after filing, for their records. The original application will be kept by the Court on file.

Legislation that might assist you:

Family Law Amendment (Shared Parental Responsibility) Act 2006 - Schedule 8—Removal of references to residence and contact
Parenting orders legislation 
Financial orders legislation (other than child maintenance) for de facto couples
Financial orders legislation (other than child maintenance) for married couples