Child Consent Orders

If Child Consent Orders are being sought this likely means that an existing (informal) agreement between the parties is already in operation, and one or both of the parties is wanting the agreement to be formalised by the Court.

An application needs to be made to the Family Court of Australia to obtain Consent Orders to either formalise a non-binding agreement, or alter current court Orders. It is important to realise that Consent Orders will only be provided if the Court has the view that they are in the child/children’s best interests.

In addition to the parents wanting to formalise any non-binding agreements (e.g. Parenting Plans) currently in place, parties may also choose to resolve child issues formally so as to prevent future proceedings in court, due to the financial and emotional strain experienced during litigation. Or, if the parties are currently involved in litigation but have reached an agreement during the course of the proceedings, Consent Orders can be utilised to discontinue the litigation at that point.

What is in the best interests of the child is the primary consideration the Court will have when considering Child Consent Orders. If the draft Orders the parents have consented to do not mirror this notion, then they will not be sealed (approved and granted) by the Court. The law provides that when making Orders the Court must contemplate both ‘primary’ and ‘additional’ considerations, to determine what is in the best interests of the child in each particular matter, such as:

Primary:

• Advantage for the child of having a meaningful relationship with both parents; and
• Any potential issues of physical or psychological harm or violence.

Additional:

• The child’s opinion regarding their parents;
• The child’s relationship with the parents and also any other person who is involved (e.g. grandparent, step parent);
• Enthusiasm and practical ability for each parent to continue having a relationship with the child; and
• Lifestyle of the child with each parent.

Any person who has obtained an agreement that desires legal formalisation, for example any party to an existing Parenting Plan or a person with legal standing to apply (such as the parent or legal guardian of the child). However, as Consent Orders are merely a formalisation of the parties wishes, the parties must agree on the terms of the Orders before they are sought from the Court.

The main advantage is that the Court’s involvement in making the Orders results in a binding agreement that both parents must comply with, which means that if either parent breaches the terms of the Orders the other party will be able to seek a remedy from the Court. This also assists the parties with compliance, for example where Parenting Plans may have been difficult to enforce, the involvement of the Court confirms the serious and legally binding nature of the Orders.

Furthermore, the Court will only make Orders which it deems to be in the best interests of the child/children, making the child the primary focus and not favouring one parent over the other.

An Application for Consent Orders and draft Minute of Order and Notice of Child Abuse, Family Violence and Risk must be filed in Division 2 of the Federal Circuit and Family Court of Australia. Details of the process is readily accessible online, along with the relevant forms and guidelines for filing your documents. It is always prudent to seek legal advice as to the correct wording of the Minute of Order.

For a sensible approach to your Consent Order requirements, contact us.

Call us today on (08) 8410 9294 to arrange a meeting, or email us at info@pacelawyers.com.