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If you have separated from your spouse or de facto partner and you have reached Agreement (or hope to!) about arrangements for the children and your property, Consent Orders are often the best way to document your agreement.
Consent Orders are essentially an agreement, that has been stamped and sealed by the Court and is therefore legally binding.
You can have Consent Orders that refer to both parenting and property settlement matters.
Consent Orders, if ‘breached’ or disregarded can be enforced by the Court. Also, if they are about property/financial matters, there are tax benefits.
For example – if part of your property settlement is that an interest in a property (real-estate like a house or land) is to be transferred to you from your former spouse, IF this is documented in a Consent Order, you will not have to pay stamp duty on the transfer.
Normally, all transfers attract stamp duty. This can be a considerable amount of money. And usually much more than the cost of paying a lawyer to prepare Consent Orders.
Capital gains tax; Stamp duty on shares
Consent Orders may also exempt you from having to pay capital gains tax on property transfers or from paying stamp duty on share transfers or to remove a party from a trust or when transferring shares in a company. These are just a few examples.
You need to apply to the Family Court for Consent Orders. You need to complete, sign and date:
The Family Court provides specific templates that are accessible from the Family Court website. There is quite a lot of information and detail that the Court requires.
There is also a filing fee for filing an application for consent orders. (It is much less than the fee charged for a Divorce Application). The rate changes yearly – at the time of writing this article it is $170. If you have a concession card you can claim an exemption from paying this fee.
You can make the application without a lawyer but be aware there is quite a lot of information to gather and documentation to consider and fill out. I always recommend that people obtain independent legal advice about the orders you are agreeing to. Also – be aware, if you have property matters that involve superannuation splits or property transfers, the orders need to be very specific so as to be enforceable.
At the very least, I always recommend engaging a lawyer to:
A Registrar of the Family Court will read through the documents and apply the law that is relevant. Various sections of the Family Law Act apply to parenting matters and property matters.
If the Court is satisfied that your agreement – which is set out in the consent orders, is in the best interests of your children (for a parenting matter) and is legally fair (for a property matter) then a Court seal will be placed on your orders.
Once you have the Court’s seal – the Consent Orders are made and final.
You are then able to apply to the Court to enforce your agreement if one party fails to comply with the terms of your agreement.
Consent Orders are regarded as final and can only be changed by a further consent order, an order made by the Court or a parenting plan*.
(*The parenting plan will only vary the consent order to the extent is addresses specific issues. The parenting plan may refer to a couple of specific things that will effectively vary the consent orders. The consent orders may refer to several things and matters that are not referred to in the parenting plan will remain intact.)
There is a fair bit of paperwork and time required to turn your agreement into Consent Orders. A parenting plan requires less energy, however, in my opinion, it is worth the additional time it takes to obtain Consent Orders.
It is also worth the cost of legal advice and assistance. If you have reached agreement, and you retain an experienced solicitor who does this type of work regularly, it should not be that expensive.
In my experience, people usually need some advice to make sure they are on the right track with what they are prepared to agree to. They also need some help to negotiate with their former spouse to finalise things. They also need assistance from a lawyer to carefully draft the actual orders. This can cost a little more. But it is well worth it.
In situations where one of the parties isn’t disclosing details about property and/or they don’t want to agree to reasonable proposals, this will (of course!) slow down the process of negotiation and make reaching an agreement impossible. In these situations, people often need a lawyer to file an application to the Federal Circuit or Family Court. And yes – this is expensive. Sadly, when one party is unreasonable, this is the only option.
On a side note – there are many law firms who are now advertising ‘fixed fees’ for consent orders. I know from experience, that it is virtually impossible to say how much something like this will cost until you have met the client and have investigated the circumstances.
For example, for Property Consent Orders:
At OSheaDyer Solicitors, we say that Consent Orders ‘start at $2000’. A fee of $2000 will only be possible if full disclosure has been made, you provide every small detail in chronological order regarding your property by filling in a draft Application form, the agreement is straightforward, the property pool is a ‘standard size’ and both parties are in complete agreement. Consent orders in these circumstances will still take around 5 hours of my time and 3+ hours of a para-legals time.
If there are additional things to do like – obtaining disclosure, doing searches to obtain property descriptions, finding super funds and shareholdings, filling out the Application form, and there are still matters that need to be negotiated to reach agreement, so letters and phone calls need to be done…. This could take 10- 15 hours of my time plus 10 or more hours of para-legals time. The cost to obtain Consent Orders will then obviously be more than $2000!
Firms who tell you the cost is fixed at $2000 (or something like that) will often give you a revised quote down the track after you have retained them. (And most clients feel once they have engaged a lawyer they are ‘stuck’ – especially if they have already spent money with them.)
That’s not how we operate at OSheaDyer Solicitors. We offer all new clients a first appointment with an experienced lawyer for a low fixed fee of $220. At the end of this appointment, after we have investigated your circumstances, we then give you an accurate written quote. And then you can make an informed decision to retain us or not.
Our family lawyers practice exclusively in Family law. We have a Family Law team of lawyers, paralegals and secretaries who practice in family law. We offer a streamlined, personalised service, excellent value for money and obtain excellent results for all of our clients.
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Jodi Dingwall
Emma Donald
Bridget Barrie