Consent Orders

A consent order is a written agreement that is approved by a court. They are used when you have made an agreement and want the Court to turn it into formal orders, and don't need the Court to make the decisions for you. When the consent order is made, it has the same effect as a court order made by a judicial officer after a court hearing.

This means you do not have to enter into the court process, and can resolve your dispute without having to go through expensive and lengthy court proceedings.

A consent order can cover parenting arrangements, as well as property and financial arrangements. It can't cover child support or child expenses. While the Court is formalising the orders you request, they also make sure the orders are appropriate, with parenting orders being in the best interests of the children and property orders being just and equitable.

Applying for consent orders can be the start of your court proceedings, or you can request them during proceedings that have already started. For example, you may have applied for parenting orders but come to an agreement after dispute resolution or discussions outside the court process.

Parenting orders by consent

Consent orders about parenting arrangements can cover:

• who the child lives with – including any shared arrangements.
• the time a child may spend with a parent they aren't living with, or anyone else who plays an important part in their life such as a grandparent. The contact can be face-to-face, or by phone, email or letters.
• any other aspect of parental responsibility - this may include the day-to-day care, welfare and development of a child, religion, education and sport.

Even if you both agree to the orders sought, the court will not approve the Consent Orders unless it is satisfied that the orders you ask for are in the best interests of the children.

The Court starts by assuming that having both parents share parental responsibility is in the children's best interests. Shared parental responsibility means that both parents share the big decisions about their children, including those that affect the children’s health, schooling, or religion.  If you are seeking something other than equal shared parental responsibility, you will need to convince the court that your agreement is in your children’s best interests.

The Court also has to consider whether arrangements to spend time with a parent are reasonably practicable. You may be asked to provide additional information if it is not clear the arrangements you are seeking are reasonably practicable.

There is more information on the types of parenting orders page.

Property orders by consent

Consent orders about property and financial orders may deal with:

• sharing your property, financial resources and liabilities
• spousal and de facto maintenance,
• splitting superannuation.

There are advantages to formalising your property and financial agreement with consent orders, including:

• Limited circumstances in which orders can be set aside
• Nominal stamp duty only on property transferred under Court orders or Binding Financial Agreement
• Capital Gains Tax rollover relief

The Australian Taxation Office has more information stamp duty and capital gains tax relief.

There is additional information on superannuation consent orders in the Applying for Consent Orders  and the Superannuation Splitting web pages.

View examples of property orders

Time restrictions on filing property and financial consent orders

An application can be filed any time after separation but should be filed within 12 months of a divorce or 2 years of the breakdown of a de facto relationship.

If filing outside these periods, you need to seek leave to file the application. Leave can be requested as one of the orders in your application. Further evidence would also be required if the parties were in a de facto relationship.

Last updated: 14-Oct-2021

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