Consent Orders Lawyers Perth

What are consent orders?

Consent orders are orders that are made between you and your partner by agreement, either in relation to your property settlement, children’s arrangements, or both. They are filed at the Family Court of Western Australia. If the court approves the orders, they will be turned into family court orders. This means that your agreement will become legally binding. 

What are the benefits of our agreement being legally binding?

Having a legally binding agreement with your partner can be extremely advantageous. 

For Property Settlement 

  • Saving thousands of dollars and countless hours in the Family Court should your informal agreement fall though; 
  • Greater certainty- knowing that your orders are legally binding means they are final and can only be varied in very limited circumstances; 
  • Transfer duty implications- having court orders in place mean that you will be exempt from thousands of dollars of transfer duty if you are transferring the title of a house; 
  • Peace of mind- knowing that your property split is final and that you can move on with your life. 

For Children’s Arrangements

  • Protecting your children’s right to have a meaningful relationship with you; 
  • Greater certainty for yourself, your partner and your children in having consistent living arrangements; 
  • Knowing that your orders are legally binding means they are final and able to be carried through into the future. 

What will the court look for when deciding whether or not to accept my consent orders?

This depends on whether you have made consent orders about property settlement or children’s arrangements. 

For property settlement

The court will look at your proposed property split and determine if it is ‘just and equitable’. How this will be determined is based on what’s known as a ‘four stage process’. This process involves: 

  1. Determining the net asset pool 
    This step includes tallying up all of the assets of the relationship and subtracting the total amount of liabilities of the relationship. 
  2. Determining each party’s contributions
    This step includes looking at each person’s contributions to the relationship. These contributions include: 
    • Initial Contributions- contributions at the commencement of cohabitation; 
    • Contributions during the relationship; and
    • Contributions since the date of separation.
      Types of contributions
      There are three different types of contributions that will be considered by the court. These are:
      • Financial contributions- Financial contributions can include lump sum payments, for example paying the deposit on a house, and ongoing payments such as home loan repayments, utility bills and groceries; 
      • home maker and parent contributions – this means raising children under 18 and doing various homemaker tasks such as cooking, cleaning, washing and gardening; 
      • non-financial contributions – this means contributions that are neither financial nor home maker/ parenting contributions- typically includes things like undertaking renovations, improvements, or working in a family business for no pay. 
  3. Determining each person’s future needs. 
    This step looks at what each party’s likely future needs are. This can include factors such as:
    • a person’s age and health; 
    • a person’s income, earning capacity and financial resources 
    • care of children under 18 
    • whether a person is receiving child support 
      If one party has greater future needs than the other, they will get a percentage adjustment in their favour. For example, a percentage division of net assets based on the parties’ contributions might be 50/50. However, the wife may then get a 10% adjustment in her favour because she has greater future needs than the husband. This would result in a final percentage division of net assets of 60/40 in favour of the wife. 
  4. The fourth and final step is to make sure that the proposed percentage division of net assets is just and equitable.
    This is because the Family Court has a duty to make property and financial orders that are just and equitable. Get in touch with our team of family lawyers to find out what a just and equitable split might look like in your circumstances. 

For children’s arrangements 
The Family Court’s paramount consideration when determining parenting arrangements for children under 18 is the best interests of the child. 

When determining this, the court will look at two primary considerations, and a long list of additional considerations. 

Primary considerations: 

  1. The benefit to the child of having a meaningful relationship with both parents; and 
  2. The need to protect the child from physical or psychological harm from being subjected or exposed to child abuse, neglect or family violence. 

Additional considerations: 
Additional considerations include things like: a child’s views, the extent to which a parent has taken the opportunity to spend time with the child, the extent to which a parent has fulfilled their obligations to maintain the child, and the capacity of a parent to provide for the child’s emotional and intellectual needs. 

What can I include in my consent orders?

In your consent orders, you can include orders about your property split and parenting arrangements. 

What can’t I include in my consent orders?

Your consent orders cannot include orders about child support. This must be organised through the Department of Human Services, or through a different kind of agreement called a child support agreement. 

Get in touch with our family lawyers for more information about child support agreements. 

What happens if my partner and I cannot come to an agreement?

If you cannot come to a financial agreement with your partner, the best option is usually to go through dispute resolution. The main dispute resolution methods are negotiation and mediation, with arbitration and counselling being less commonly used. These methods can be helpful in assisting you reach an agreement. In fact, it is required that you attempt dispute resolution before you go to court, unless you are exempt because of exceptional circumstances such as fraud, urgency or family violence.

It is up to you and your partner which form of dispute resolution you wish to utilise. If dispute resolution is successful and you come to an agreement, you can either convert this into an informal agreement, consent orders or a binding financial agreement. 

What happens if we attempt dispute resolution and still cannot come to an agreement?

If all other options have been exhausted and an agreement still can’t be reached, then the last resort is to take your case to the Family Court of Western Australia and to let the court to decide your property division for you. It is possible to represent yourself in court, but legal advice is certainly recommended. 

When should I get legal advice?

We highly recommend getting legal advice from our team of experienced family lawyers as early as possible. This is important for the following reasons: 

  1. We will help you understand your legal rights and entitlements in regard to both your children and property matters. This will arm you with important information to aid you in coming to an agreement with your partner.  
  2. We will help you understand the next steps involved in the process, including the various avenues in and outside of the Family Court. 

MEET JEFF HEWITT

Jeff Hewitt is the head of MKI Legal’s family law team. Jeff is a senior family lawyer with over 16 years’ experience.

Jeff practises exclusively in family law. He has extensive experience in property and financial matters, parenting and children’s matters, de facto property matters, family law matters affecting same sex couples, superannuation splitting, spousal maintenance, divorce, child support, child support agreements, binding financial agreements, and consent orders.

Jeff is an experienced negotiator who takes great pride in resolving disputes and keeping people out of court as much as possible.

In his spare time, Jeff enjoys spending time with his family, playing guitar, reading, meditation, and supporting his beloved football team.

Jeff is a member of the Family Law Practitioners’ Association of Western Australia, the Law Society of Western Australia, and the Law Council of Australia (Family Law Section).