In Victoria, Orders with respect to parenting issues and/or property matters can be made pursuant to the Family Law Act 1975 (Cth), in either the Federal Circuit Court of Australia, or the Family Court of Australia.
So, when are Orders binding? When can you appeal them? Are you able to withdraw your consent after it has been provided?
A binding Order can be made in either of two ways:
- By way of Consent Order; or
- By way of Judgment of the Court.
What are Consent Orders?
Consent Orders are a formal written agreement between parties to a family law matter. Once Consent Orders have been filed with the Court and approved, they become legally binding and enforceable.
Consent Orders can formalise parties’ agreement about a wide variety of parenting and property matters, including but not limited to: living arrangements for a child of the relationship, maintenance for any children over the age of 18 years, any aspect of parental responsibility, spousal or de facto partner maintenance and the division of any property, superannuation or financial resources.
Consent Orders cannot however formalise parties’ agreement about child support for children under the age of 18 years who are covered under the Child Support (Assessment) Act 1989. Private arrangements for the payment of child support can instead be formalised in a separate Child Support Agreement. Consent Orders also cannot formalise agreements regarding medical procedures, or where parenting arrangements are made for a person who is not a parent, grandparent or relative of the child.
When Can I Apply for Consent Orders?
The Family Law Act provides the Court with the power to make Orders in accordance with the consent of parties. This can either occur:
- During a litigated matter where proceedings have been issued in Court and are currently on foot; or
- During negotiations, when the parties have reached an agreement and have forwarded the Order to the Court where there are no being proceedings on foot.
How Do I Apply for Consent Orders?
If there are proceedings on foot in either Court and the parties come to an agreement either by themselves or with the assistance of their lawyers they can obtain a Consent Order. This can either be obtained in Court on the day of a Hearing before a Judge (at which stage it becomes binding), or, alternatively, the proposed Consent Order can be forwarded to the Court after being signed by both parties.
If there are no proceedings on foot, parties can make an application to the Family Court of Australia for Consent Orders. In order to do so, parties must file an Application for Consent Orders and a Minute of Consent Orders with the Family Court of Australia. Before the Court can approve Consent Orders, the Judge or Registrar must be satisfied that an agreement in relation to property is ‘just and equitable’ and an agreement in relation to parenting is in the ‘best interests’ of the children.
Can I Withdraw Consent?
Either party has the option to withdraw their consent prior to the Order being pronounced by the Court. This means that if you forward the proposed Order to the Court to make, one party may withdraw their consent prior to the Order being made.
In the event the Order is made by a Registrar of the Court, either party may apply to the Court to review the Order or direction made by a Registrar within 28 days. For this reason, Orders made usually provide for implementation a minimum of 28 days 1 after the order is made.
What are Orders made by ‘Judgment’ of the Court?
Orders made by way of ‘judgment’ are binding Orders of the Court made by a judicial officer after a Hearing. Orders by way of Judgment are made after a Judge has heard both parties’ evidence, considered the relevant law and made a final determination as to what is a just and equitable settlement, or (in parenting disputes) one that is in the best interests of the child.
Either party to the matter has the right to appeal the Order and seek a stay of the application of the Orders that were made. The Family Law Rules 2004 (Cth) require an Appeal to be filed within twenty-eight (28) days of the date the Orders were made. 2 The Court has discretion to allow an extension to this twenty-eight-day deadline. 3
The Court also has power to vary or set aside a judgment after it is entered under certain circumstances, including but not limited to the following:
- It was made in absence of a party;
- It was obtained by fraud;
- It does not reflect the intention of the Court;
- There is a clerical mistake; or
- There is an error caused by an accidental slip or omission. 4
Please note this does not include Divorce Orders.
For more information about this or any other family law matters please contact one of our experienced family lawyers on (03) 8393 0144.
- Family Law Rules 2004 (Cth) r 18.08 (‘FLR’).
- Ibid r 22.03.
- Ibid r 1.14.
- Federal Circuit Court Rules 2001 (Cth) r 16.05; FLR r 17.02.
