Applications for Consent Orders

Imagine you and your former spouse (whether married or de facto, same sex or otherwise) have been separated for, let’s say, 6 months. The reality of the situation has hit home, and the “dust” is beginning to settle. Over that time both parties have been relatively proactive in moving things along: the former matrimonial home has been independently valued; joint and personal bank accounts disclosed; up-to-date superannuation statements provided by each party; share portfolios valued; and “Redbook” valuations obtained on each party’s motor vehicle. In short, you both have managed to “pin down” the assets, liabilities, and financial resources of your relationship through the obligatory disclosure process. 

You know each other’s incomes, and both of you are still in good physical health and have decent working futures ahead of you. Your 3 children, aged (for example) 12, 14 and 16 don’t require babysitters – just a never ending, complimentary taxi service to take them to school, soccer practice, a Friday night “gathering” at their mate’s place or even – if you’re lucky – to their part-time job at KFC. 

Anyhow, it has been agreed that the children will live primarily with Mum and spend 5 nights each fortnight at Dad’s (especially as its summer, and his rental has a pool…). With the input of practical, client–focused family lawyers, you and your ex-spouse have managed to agree that Mum will keep the former matrimonial home and re-finance the modest mortgage into her own name. Dad will retain the majority of his superannuation but will still split (e.g.) $75,000 to Mum’s fund. Cars will stay where they are, and Mum will retain most of the furniture and chattels. Anyway, Dad’s new girlfriend is moving in with him and will bring a lot of her own furniture with her…!

Of course, the agreement that you and your former spouse or de facto partner ultimately reach may only take 3 months – on the other hand, it could take well over a year. Regardless of how long the process has taken, your settlement can – and certainly should – be formally documented through an Application for Consent Orders to the Family Court. 

The Form 11 Application for Consent Orders is a prescribed form issued by the Family Court containing the parties’ details, children’s details (if applicable), key dates in respect of the relationship and listing each party’s income, assets, liabilities, superannuation entitlements.  It is also designed to outline the proposed division of property and effect of the property orders sought.  It is required to be signed by both parties and an associated Minute of Consent Orders must be filed with it.

Once the Application has been approved by the Court the Orders sought by the parties are made, stamped with the Court seal, and become legally binding and enforceable from that point on. Changing your mind is no longer an option.

An Application for Consent Orders can seek to formally resolve all property and financial issues between the parties; confirm future parenting arrangements; or both. Property Orders in most cases will deal with the transfer or sale of real estate – often the former matrimonial home – and the distribution of any net proceeds of sale; the splitting of one party’s superannuation entitlements into the other’s fund to “balance things up”; cash payments between the separating parties; and any spousal maintenance amount that might be agreed or “incorporated” into any lump sum payments made.  

Parenting Orders, on the other hand, will clarify the extent to which each party has responsibility for making major decisions regarding the children’s futures (i.e., their health, education, or cultural/religious upbringing); how long the children will spend living with each parent; the frequency and duration of phone calls/Facetime etc; and how important events like birthdays, Christmas and school holidays will be “divided up”.

The benefits of obtaining Consent Orders are numerous, but the following are probably the leading reasons:

1. Obtaining such Orders draws a final, irrevocable line under the parties’ financial relationship at a specified point in time.  It allows both parties to move on with their lives – new jobs, new residences, new partners – even new children! – without having to worry about property or financial claims being made by the other party, possibly several years down the track.
2. Securing Consent Orders within a reasonable time after separation means that future windfalls such as compensation pay-outs, inheritances or redundancy payments are not “up for grabs” if they occur after the Orders are made.  This would not necessarily be the case if the parties were simply relying on an informal arrangement that had not been considered and approved by the Court – relying upon a “Gentleman’s Agreement” in the uncertain, emotionally-charged world of Family Law can be an exceptionally risky venture.
3. Obtaining Consent Orders avoids misunderstandings as to what the parties’ thought was to happen – arguments occasionally arise because both parties are not really “on the same page”, and their informal agreement (even if it’s in writing) is insufficient to clarify the ambiguity or the dispute.  Clear, concise Consent Orders – especially if prepared by an experienced lawyer – can prevent these disputes from ever arising.
4. Consent Orders are legally enforceable, whereas an informal agreement to do certain things with regard to future parenting arrangements or to implement a particular property distribution are not necessarily worth the paper they are written on (if they are written at all!).
5. Parties move on – their emotional, physical, and financial fortunes can change enormously within a year or so of separating or reaching an informal financial arrangement.  Enshrining their agreement in formally approved Court Orders makes it impossible for the party who subsequently suffers a decline in circumstances – e.g., loss of long-term employment or diagnosis of a significant illness – to pursue the other party for a “bigger slice” of the property pie at a future date.          
6. If an informal property settlement is effected between parties who have not taken the step of embodying their agreement in Consent Orders, then any real estate or other asset property transfer between former spouses/partners as a consequence of separation will attract both stamp duty and, potentially, Capital Gains Tax.  Often, the cost of engaging a lawyer to advise upon, draft and finalise a Form 11 Application and Minute of Proposed Consent Orders will be significantly less than any stamp duty which might otherwise be assessed on the transaction.  CGT rollover relief is also available on transactions effected pursuant to Consent Orders.

Not quite! Most Consent Orders Applications are concerned with final property settlements, spousal maintenance, or parenting arrangements – however, it is not possible to make Consent Orders about child support issues or to make a parenting order in favour of someone who is not a parent, grandparent or other relative under Section 65G of the Family Law Act. Nor would it be possible to make a Consent Order about whether a de facto relationship existed or not.  Instead, this would be a matter of fact and evidence, not agreement.

However, it is possible to set out in Recitals to the Orders what the parties’ intentions might be in relation to, for example, who pays for flights (if the parties live far apart) or what contributions each proposes to make to private school fees.  But such Recitals are not enforceable as Orders.

In a word, “No”.  Some parties can and do reach an agreement and prepare, execute, and submit the necessary settlement documents without any input or advice from family lawyers.  That said, there are obviously numerous pitfalls in the Form 11 Application process which, if not handled properly, can see Applications rejected time and time again.  As highlighted above, this can create substantial further delay, frustration and even hostility between the parties where none previously existed.  

Significant delay of, for example, 3 – 6 months because one or both parties continually fail to properly complete the requisite sections of the Form 11 Application; or present ambiguous or unenforceable proposed Orders; or fail to have the documents properly executed and/or witnessed can ultimately result in one party then seeking updated financial information from the other.  A delay of e.g., 6 months – all due to repeatedly improperly prepared or executed documents could, during certain economic periods, see a substantial rise in one party’s superannuation entitlements or the value of real estate to be retained by one party.  

In one recent case lengthy delays in, firstly, the Court accepting the Application for filing; and, secondly, the repeated failure of the parties to address the “just and equitable” requirement eventually saw a $150,000 increase in the net assets for distribution.  The wife then withdrew her consent and sought a much larger “chunk” of this newly increased asset pool, which would not have existed had the Application been properly prepared, executed and filed at the first attempt.

Accordingly, engaging a lawyer who can guide you through the process at the first time of asking could, in certain circumstances, have considerable economic benefits to the party retaining increasingly valuable assets.

In property matters, the Court can only make Final Orders which it considers to be “just and equitable” (or “fair and reasonable”) in all the circumstances of the case. Even where parties otherwise agree, the Court can still reject an application where, for example, the parties have agreed to an equal distribution of the net assets but, objectively, one party should receive substantially more based on long-standing family law principles.  

This is why the Form 11 Application that accompanies the Minute of Proposed Orders is so comprehensive – the Court needs to know about the nature and value of the current assets and liabilities; the parties’ respective initial and subsequent financial and non-financial contributions, as well as their parenting and domestic contributions; and each party’s likely future needs before determining if the Orders it is being asked to make are, indeed, just, and equitable.    

If the Judicial Officer assessing these factors isn’t satisfied with the proposed outcome, the Form 11 will be “put on hold” and the Court will write to the parties asking them to justify how the proposed Orders are “just and equitable”.

If the parties insist on proceeding with their proposed settlement regardless of whether it is objectively unreasonable, it may be more advisable to enter into a Financial Agreement, instead.  The difference is that such Agreements are not initially subject to judicial scrutiny but, conversely, both parties must obtain independent legal advice before entering into it.  

As indicated above, parties can always apply for Consent Orders without taking any legal advice whatsoever, although it is always better to seek some basic professional reassurance before doing so as parties don’t get a “second chance” after the Orders are made.

In parenting matters, any proposed Consent Orders must be regarded by the Court as being in the best interests of the child – an Application can be rejected if the Court feels that the Orders sought fail to properly protect those interests.

The parties must actually be separated and their relationship at an end before an Application for Consent Orders can be made.

Such separation can, however, occur “under one roof” i.e., without the parties living physically apart in separate residences, so long as they are no longer living together as a married couple or de facto partners.

This usually involves sleeping in separate bedrooms, ceasing joint social activities and closing joint accounts, etc.

Technically, it is possible to apply for Consent Orders the day after separation occurs, whereas the parties must wait 12 months to file for divorce.

It is also possible to apply for Consent Orders in relation to property issues alone, even if the parties are already involved in litigation over parenting matters at Court.

The reverse is also the case.  Where parties were married, they have a maximum of 12 months after their Divorce Order is made final within which to apply for property adjustment and spousal maintenance Orders.

It is, however, always possible for the parties to seek an Order that the time limit itself be extended by consent.  With de facto/same sex relationships, the corresponding time period is two years from the date of separation.  

If the other party will not agree to extend this period, then it will be necessary to make an Application for leave of the Court for the Application to be heard “out of time”.

This will, however, trigger the litigation process and an Application for Consent Orders can no longer be made.

Yes – once the Consent Orders are made, they carry equivalent judicial weight and can be enforced with as much authority as any Orders made after a contested Court hearing.

Similarly, the consequences of breaching Consent Orders can be similar to breaching those Orders made in the course of the litigation process.

Although the legislation dealing with the splitting of superannuation funds as part of a property settlement is complex, there is, again, no formal requirement for either party to obtain independent legal advice in relation to the construction of those Orders.

However, those particular clauses are not necessarily straightforward or easy to understand and usually contain the most “legalese” of property orders routinely made at the Family Court.  

It is important to remember that where superannuation splitting Orders are sought by way of a Consent Application, the agreement of the Trustee to the Superannuation Fund being split is also required.

You must, accordingly, send a draft copy of the proposed Orders to the Trustee of the relevant fund to ensure that they are satisfied with the terms and format of the Orders which will, of course, affect the Trustee.

The Trustee then has 28 days within which to respond, intimating any changes or corrections it requires in the draft Orders.

A copy of the letter from the Super Fund approving the Orders in their final format should be forwarded to the Family Court along with the Form 11 Application.  

If the Court is not satisfied that the Trustee of the relevant fund has been given due notice under the Family Law Act, then the Orders will not be made at that time.

Before any super-splitting Orders can be implemented, the Trustee must receive a sealed, certified copy of the Orders after they are made.

It must be noted that Super Splitting Orders still cannot be made between parties who have never been married.  Although the relevant legislation is anticipated to finally come into force next year, the Court at this time (December 2021) still has no power to make Splitting Orders between de facto parties.

There is a standard filing fee of $170 when applying for Consent Orders to the Family Court of Western Australia. However, if you are eligible for an exemption e.g., if you possess a Health Care Card, then you will require to copy both sides of that card and file it with your Application. 

If you are not immediately eligible for an exemption, but claim that payment of the fee will cause you financial hardship, you can complete and upload the Application for Exemption from Fees Form – Financial Hardship.

Your Application for Exemption will then be considered by the Court. 

If you are e-filing your Application for Consent Orders you will need to pay the filing fee by bank card or credit card when you complete the online interactive Application.

In very general terms, if parties have already agreed the outcome of their property settlement by the time, they instruct a lawyer to draft the documents, then, assuming all the necessary disclosure is promptly exchanged, and the Trustee of any super fund to be split has been given notice, the actual drafting and execution of both the Form 11 Application and Minute of Proposed Orders should probably take between 2 to 3 months.

But this will vary from case to case, depending on the proactivity of the parties, the type and extent of information sought, and the workload of the lawyers involved.

In the normal course, you can expect your Application to be approved and Orders issued within 4 – 6 weeks of its being submitted to the Court.

If granted, the parties will be notified by the sealed Orders simply being issued on the Court Portal. If, however, a Judicial Officer has some concerns or queries about the Application they will write to both parties asking for more information. It would probably be a good idea to obtain independent legal advice at this stage, if you haven’t already.

With respect to property and/or financial matters, Consent Orders made by way of a Form 11 Application are, indeed, final.

One party changing their mind a few months down track simply because there has been a noticeable increase in the market value of the property the other party is retaining; or – due to the subsequent death of a family member – one party is due to receive a significant inheritance, does not of itself allow the settlement to be re-opened and the Orders re-negotiated.  

The primary scenarios through which Final Orders for property settlement can generally be set aside (i.e., rendered null and void) is where the Court – upon an Application – is satisfied that:

1. there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
2. in the circumstances that have arisen since the Order was made, it is impracticable for the Order (or part of it) to be carried out (e.g., the property about which the Order was made has been destroyed or no longer exists); or
3. a person has defaulted in carrying out an obligation imposed on him/her by the Order and, in the particular circumstances which have arisen as a result of that default, it is just and equitable to vary the Order or set it aside.

If such a ground can be proved, the Court may vary or set aside the original Order and, if appropriate, make another Order in its place.

However, such Applications are relatively uncommon and often difficult to establish. Generally speaking, trying to overturn, or set aside Final Orders (whether made after a hearing or by consent) simply because one party made a “bad bargain” will be almost guaranteed to fail.

Further, being made redundant or contracting a life-threatening illness will not permit the Court to consider setting the original Orders aside any more than would your ex-spouse receiving a substantial inheritance, marrying a wealthy new partner, winning the lottery, or benefiting from a property boom in e.g., the 12 months since the Orders were made.

The Application Form seeks information on all assets, liabilities and financial resources held jointly or individually by each party at the time the Application is executed and submitted.

Accordingly, it does not matter if you owned what later became the matrimonial home in your sole name prior to marriage; or whether you bought a brand-new boat with an inheritance received 6 months after separation – all such assets must be disclosed and included in the overall asset pool for consideration and distribution.  

The Court will, however, consider the extent to which prior ownership or subsequent acquisition of assets or resources might impact upon an assessment of the parties’ overall contributions – particularly contributions made post-separation.

If one party fails to abide by a legally enforceable Order (whether made by consent or otherwise) the “victim” party can file either an Enforcement Application or Contravention Application, seeking to force the implementation of the Order and/or punish the party committing the breach.

Be warned, however, that enforcement/contravention proceedings are not dealt with particularly promptly, and the timeframe between filing an Application and having the matter argued/resolved in Court can take anywhere between 3 – 6 months.  

If you consider that your former partner has breached a Consent Order, we strongly advise you to obtain legal advice before heading back to Court, as numerous (and possibly complex) issues are sure to arise.

• Should you file an Enforcement Application or a Contravention Application?
• What particular remedy are you seeking?
• Is it an issue that could be resolved by correspondence from a lawyer, and the mere threat of an Application being brought?
• Have you sustained economic loss as a result of the other party’s breach? If so, how have you quantified that loss?

Contravention/enforcement proceedings can be a minefield, and you should not enter the fray without seeking some input from an experienced family lawyer.

The Form 11 Application specifically asks if there are any existing Orders, agreements, parenting plans or undertakings to any Court about family law, child support, family violence or abuse, etc.

Accordingly, any previous Court Orders relating to either parenting or property settlement involving either party, or other Family Law documents such as Binding Child Support Agreements or Financial Agreements, Divorce Orders, Restraining Orders or Parenting Plans should all be fully disclosed in Part C of the Form 11 Application.

Parties have a choice to either attach copies of such documents or provide details of the relevant Court, the names of the parties, and the dates and basic details of the Order/Agreement/Plan.

If the proposed Orders involve a transfer of real estate, then a copy of the Certificate of Title relating to the property should also be attached to the Application.

In the event of a Superannuation Splitting Order being sought, then it is also good practice to file with the Application a copy of the letter from the Trustee of the relevant Super Fund confirming their consent to the format and content of the proposed Splitting Order together with the two latest member statements.

Married parties should also enclose a copy of their Marriage Certificate. 

Where parties who have been living in a de facto relationship seek property settlement Orders (under the Family Court Act (WA) 1997), it is also essential that the Applicant provides what is known as an “Affidavit as to Jurisdiction”.

This is a short Affidavit setting out the basis of the parties’ relationship, how long it lasted and where (i.e., in which State) the majority of the relationship occurred.  To enliven the jurisdiction of the Court to deal with de facto property matters, this Affidavit has to confirm that the parties were either:

1. in a de facto relationship for a period in excess of 2 years; or
2. had a child together; or
3. the Applicant has made substantial financial and/or non-financial contributions to the acquisition of the relationship assets, and a failure to make a property adjustment Order would result in serious injustice to that party.

The Affidavit as to Jurisdiction should be filed simultaneously with the Form 11 Application, Minute of Proposed Orders Sought and any other Certificates, documents, or agreements.