What Happens After A Consent Order Is Sealed By A Judge?

What Happens After A Consent Order Is Sealed By A Judge?

In the Family Court of Australia, a consent order represents an agreement between parties regarding parenting arrangements or financial matters after a relationship breakdown. But what happens after a consent order is sealed by a judge?

In the Federal Circuit and Family Court of Australia, judges do not “seal” consent orders in the same way that might occur in some other jurisdictions. Instead, when a judge approves a consent order, they will formally make the order and then issue a sealed copy to the parties involved.

When family law consent orders are made ‘official,’ both parties must ensure that they adhere to them from the date they are granted.

Any new schedules or other orders will need to be followed for parenting matters. Any orders for property transfer or asset sales made in financial consent orders must be actioned within the defined time frame.

Background Information

After a relationship breaks down, most couples will need to decide how to split assets, pay off any debt incurred together and deal with any ongoing maintenance matters. People with children may need to make formal parenting arrangements for their children. During the separation or divorce process, there is a set timeframe to settle property matters, which is within two years of a de facto relationship ending or within one year of a divorce order being made.

Property and parenting matters can be addressed by private agreement, court orders (such as consent orders), or a postnuptial financial agreement. If property matters are finalised by consent orders, a consent order application must be made to the FCFCOA. 

Draft orders will be formalised into family law orders when a Judge has approved them. From here, involved parties will be given a sealed, final copy. Even if neither party goes to court for the hearing, they will receive a sealed copy from their lawyer and electronically via the Commonwealth Courts Portal.

What Is Meant By ‘Sealed’ Consent Orders?

When we refer to a consent order as being “sealed,” it signifies that the judge has finalised the agreement and made it part of the official court record system. The sealed order serves as a crucial document, providing proof of the agreed terms. This document can be used in enforcement actions should either party fail to comply with its stipulations.

Process For Obtaining Consent Orders in Family Court

Once an application with draft consent orders is lodged, a judicial officer will review the application. This is where the approval process begins. If both parties agree and the terms are deemed fair and in the best interests of any children involved, the judge will approve the orders. It is important to note that, under the Family Law Act 1975, these orders must reflect the reality of the situation to ensure they are enforceable.

After approval, the court issues a court order, and the judge provides a sealed copy. This process is often misunderstood; while one may refer to the “sealing” of an order, it effectively means that the consent order has been formalised and is now legally binding.

1. Application: Parties to a family law matter can apply for consent orders if they have reached an agreement on issues such as parenting arrangements or property settlements.
2. Hearing: The application is typically submitted to the Family Court, where a judge will review the proposed consent orders. A hearing may be required, though in many cases, the parties can simply provide the necessary documentation for the judge’s consideration.
3. Approval: If the judge is satisfied that the consent orders are appropriate and in the best interests of any children involved (in parenting matters) or fair (in property matters), they will approve the orders.
4. Sealed Copy: Once approved, the judge will provide the parties with a sealed copy of the consent orders. This sealed order is an official document that can be used to enforce the terms of the agreement.

Key Points

• Finality: Once the court consent order is sealed, it becomes a legally binding document. Parties must comply with its terms.
• Enforcement: If one party fails to comply with the consent order, the other party can seek enforcement through Family Court registrars.
• Variation: Parties can apply to have the consent orders varied or set aside if circumstances change, but this typically requires a further application to the court.

What Is A Consent Judgment?

A consent judgement is a court order reflecting an agreement reached by the parties involved in a dispute. Unlike a typical judgement, which results from a court’s decision after a trial, a consent judgement is based on the parties’ mutual agreement.

Key Features

1. Voluntary Agreement: A consent judgement arises when both parties agree to settle their disputes without proceeding to trial. This agreement is then presented to the court for approval.
2. Formal Court Order: Once the court approves the agreement, it becomes a formal court order. This means it has the same legal effect as a judgement handed down after a court trial.
3. Binding Nature: A consent judgement is legally binding on both parties, and failure to comply with its terms can result in enforcement actions.
4. Efficiency: Consent judgments can expedite the resolution of disputes, saving time and resources for both the court and the parties involved.

Next Steps for Parenting Matters

Once a parenting order is sealed, the following actions typically occur:

1. Implementation of Care Arrangements: The parenting arrangements outlined in the consent order will come into effect. This includes establishing where the children will live, schooling arrangements, and visitation schedules.
2. Coordination with the Child Support Agency: If a child support agreement has been made, parties must register the parenting order with the Child Support Agency. This ensures that financial responsibilities are recognised and enforced.
3. Ongoing Communication: Effective co-parenting requires ongoing communication. Parents should refer to the parenting plan established during the court process to guide their interactions regarding the children’s welfare.
4. Documentation of Changes: Any significant changes to the care arrangements should be documented and, if necessary, communicated to the court. If a party fails to comply with the consent order, the other party may need to file a contravention application.

Next Steps for Financial Matters

In the case of financial matters, such as property consent orders, the process involves several specific steps:

1. Superannuation Splitting: If the consent order involves the division of superannuation interests, the parties must execute the necessary documents to initiate superannuation splitting. This can often involve communication with superannuation funds to ensure compliance with the court order.
2. Transfer of Assets: The parties must carry out any agreed financial transactions. This may include transferring the title of the family home or settling mortgage debt. Such transactions should be completed promptly to comply with the terms of the court order.
3. Compliance with Maintenance Claims: If the order includes spouse maintenance orders, the recipient can seek enforcement through the Federal Court or the District Court if payments are not made as specified.
4. Finalisation of Financial Agreements: Finalising a property settlement agreement ensures that all assets and liabilities are settled. This may involve creating a clean break consent order, where both parties agree to a final settlement, eliminating any future claims against each other.

Considerations for Future Modifications

While a consent order is legally binding, there may be circumstances where modifications are necessary due to changes in life circumstances. If parties seek to change the terms of a sealed consent order, they must file a new application with the court, which will involve a review process to ensure the changes are justified.

What If Either Party Wishes To Appeal A Family Law Order After It’s Been Made?

In most cases, consent orders are made when both parties agree to the orders being made. However, there may be times when one party does not agree with orders made and wishes to have them changed.

This may be due to the legal advice they received when giving consent (or lack thereof), due to family violence being a factor, or if they have been pushed or were under duress when giving their consent for orders to be made, In some cases, this can be sorted out in mediation, and in others, an appeal may be required to overturn orders.

In Australia, the court that hears appeals from family law matters is called the Full Court of the Family Court of Australia. This court is responsible for reviewing decisions made by the Family Court and the Federal Circuit Court.

Key Points About the Appeal Process

1. Grounds for Appeal: A party can appeal a decision based on various grounds, such as a claim that the judge made an error in law, that the decision was not supported by the evidence, or that there were procedural issues during the original hearing.
2. Appeal Process: The appealing party must file a notice of appeal within a specific time frame, usually 28 days from the date of the decision. They will also need to provide reasons for the appeal and any relevant documentation.
3. Outcome of an Appeal: The Full Court may uphold the original decision, overturn it, or send the case back to the lower court for reconsideration. The decision of the Full Court is typically final, although, in some circumstances, further appeals may be made to the High Court of Australia.
4. Legal Representation: It is advisable to seek legal advice when considering an appeal, as the process can be complex and may require a solid understanding of family law.

Consent orders can end up in the Court of Appeal in Australia, but this typically occurs under specific circumstances. Here’s an overview of how this might happen:

Circumstances for Appeal

1. Disagreement on Terms: If one party believes that the consent orders were entered into under duress, without proper understanding, or were not in their best interests (especially in parenting matters), they may seek to challenge their validity.
2. Procedural Errors: If significant procedural errors occurred during the process of obtaining the consent orders, such as a lack of legal representation or inadequate disclosure of relevant information, this could form a basis for appeal.
3. Subsequent Issues: After the consent orders are made, if one party believes that the circumstances have significantly changed (such as a material change in financial circumstances or the wellbeing of a child), they may apply to the Court of Appeal to seek variation or challenge the orders.
4. Interpretation Issues: Disagreements on how the consent orders are to be interpreted or implemented may also lead to an appeal if one party believes the court’s original interpretation was incorrect.

Appeal Process

• Full Court of the Family Court: Appeals related to family law matters, including consent orders, are typically heard by the Full Court of the Family Court of Australia. This court reviews the original decision made by the Family Court or Federal Circuit Court.
• Time Limits: There are strict time limits for filing an appeal, usually within 28 days from the date of the consent order.
• Requirements: The appealing party must provide sufficient grounds for the appeal, demonstrating that the original decision was erroneous or unjust in some way.

While consent orders are intended to provide a binding resolution to family law disputes, they can be subject to appeal under certain circumstances. If you believe that a consent order should be challenged or varied, it is advisable to seek legal advice to understand your rights and the appeal process thoroughly.

Consent Order Rejection

Consent orders are not always as straightforward as they may seem, and due care needs to be given to the initial drafting, the application process, and adherence after they are formalised by the court.

In some cases, consent orders may be rejected. This can happen if the terms do not meet legal requirements or if the judge feels that the agreement is not in the best interest of either party or any children involved. If this occurs, it’s essential to consult with your lawyer to understand the next steps and consider alternatives like mediation or a round table conference to ensure orders are legally fair and compliant.

Non-Compliance By Either Party

If a party breaches the terms of a consent order, the other party may file a contravention application or a recovery order if a changeover of children does not occur in line with the orders. This can lead to court battles to enforce compliance with the order – and serious penalties if either party is shown to be dismissive of orders in place. It’s important to document any breaches to support your case in court.

Importance of Legal Guidance

Given the many nuances of the family law system, it is highly advisable to seek assistance from a qualified family lawyer. They can help you navigate the application for consent orders and ensure that all legal requirements are met and that your interests are protected. They can also assist with drafting fair and practical orders and guiding you through the court filing fee process, providing clarity on consent order costs and any associated fees.

Conclusion

Understanding what happens after a consent order is sealed by a judge is vital for navigating the aftermath of a relationship breakdown. Whether dealing with parenting arrangements or financial settlements, clarity on the next steps can help ensure compliance and facilitate smoother transitions for all parties involved. Seeking professional legal guidance can greatly assist in understanding your rights and obligations, ultimately providing peace of mind during what can be a challenging time.

If you have further questions about consent orders or family law matters, consider reaching out for a complimentary, obligation-free 15-minute telephone consultation. Our Gold Coast and Logan family lawyers are here to help. We offer tailored advice and strategies to ensure you achieve the best possible outcome in your situation.