Family Court of Western Australia

Applying for consent orders

If you have reached an agreement with the other party, you can apply for consent orders. Consent orders make your agreement an order of the court without you having to go through the court process. When consent orders are made, your agreement will have the same legal effect as a decision of the Court.

This page is about making an Application for Consent Orders, which is when you are requesting consent orders as the first stage in the court process. If the Court is already dealing with your dispute, you file a minute of consent orders.

Even if you are applying without the help of a lawyer, you should get legal advice about your consent orders. It is important that you understand the meaning and consequences of the orders you are proposing.

 

To apply for consent orders, you need to file:

Application for Consent Orders (Form 11)

Before you begin it is important to be aware that there are some orders you cannot seek by using this application. They are:

Generally, Consent Orders that can be made by a court fall into two categories – parenting orders and financial orders.

Parenting Orders

These include orders relating to:

  • The person with whom the child lives – including any shared arrangements.
  • The times that a child may spend with – that a child may spend with a parent with whom they are not living, or anyone else who plays an important part in their life, such as a grandparent and can be either 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.

Financial Orders

These include orders relating to:

  • Spouse maintenance – financial support for a husband, wife, former husband/wife or de facto.
  • Property – how your property, superannuation, financial resources and liabilities should be shared between you.

If you are seeking orders concerning children you should read and consider sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975 or Part 5 of the Family Court Act 1997 for an ex-nuptial child.

If you are seeking financial orders, you should read and consider sections 75 and 79 of the Family Law Act 1975, or section 205 of the Family Court Act 1997 and section 13A of the Interpretation Act 1984 for de facto relationships.

If you were married and are seeking orders for property settlement or maintenance, and more than 12 months has lapsed since your divorce became final, you should read and consider s44(3) of the Family Law Act 1975. This may apply and if so, you must consent to the Court making the proposed property and maintenance orders.

If you have been in a de facto relationship and you are seeking orders for property settlement or maintenance, and more than 2 years has lapsed since you separated from your de facto partner you should read and consider s205ZB(1) Family Court Act 1997. This may apply and, if so, you must consent to the Court making the proposed property and maintenance orders and provide affidavit evidence about the hardship that will be caused to the Applicant in the event orders are not made.

Superannuation

For married parties. there are special requirements where you are making an application for orders for property settlement and either party has a superannuation interest.

If you are seeking a splitting order in relation to a superannuation interest in accordance with Section 90XT of the Family Law Act 1975:

(a) You must attach to the application a completed Superannuation Information Form or last two member statements in relation to that superannuation interest.
      (see Superannuation Information Kit)

(b) You must calculate and agree the value of the superannuation interest and consider the taxation consequences of the order. If the Family Law (Superannuation) Regulations 2001 provide a method for calculating the value then that method must be used. Otherwise you must agree an appropriate method of valuing the interest. The completed Superannuation Information Form will have sufficient information to allow the value to be calculated in accordance with the regulations.

(c) Where a base amount is allocated then that amount cannot exceed the value of the interest (see Section 90XT(4)).

If you are seeking an order that imposes an obligation on the Trustee of the superannuation plan you must satisfy the court that the Trustee has been afforded procedural fairness in relation to the making of the order.

The court requires that at least 28 days before filing the application, you must serve written notice of the following matters on the Trustee of the superannuation plan in which the superannuation interest is held:

(a) the terms of the orders that will be sought from the Court to bind the Trustee;

(b) that the Trustee may object to the orders sought by giving written notice within 28 days of receiving the notice.

See Superannuation Splitting page

De facto parties seeking financial orders

De facto parties seeking financial orders are required to file a separate affidavit.

(see Affidavit supporting the application webpage)

If there are other orders

If the orders you seek are intended to vary or discharge an existing order which was made in any other Court or Family Court registry, other than the registry in which the Application for Consent Orders is to be filed, then sealed copies of the existing order must also be filed.

Change of name and/or address

If you change address after the application is filed you must eLodge a Notice of Address for Service (Form 8) so the Court can send any papers to the correct address.

If you change your name after the application has been filed, you must eLodge a Notice of Change of Name.

Third Parties

A person against whom an order is sought or whose rights may be directly affected by an issue in the case must be included as a party to the application for consent orders. For the persons who must be parties to an application seeking parenting orders see Rule 6.02(2) of the Family Law Rules 2004.

Certain persons are entitled to become a party to proceedings between parties to a marriage (see section 79(10)) and parties to a de facto relationship which has broken down (see Family Court Act 1997). You may be required to notify the third party about this application – see sections 79F, 79G, 79H and 79J (in relation to proceedings between parties to a marriage) and the equivalent sections of the Family Court Act 1997.

If an order or injunction is to be binding on a third party under Part VIIIAA or Part VIIIAB of the Family Law Act 1975, that third party must:

  • be named as a respondent to the application;
  • sign the draft consent order;
  • sign Part N (see supplementary page to the Application to Consent Orders).

Findings the Court must make

The matters the Court must consider when deciding an Application for Consent Orders are set out in the Family Law Act 1975 or the Family Court Act 1997. The Court has to be satisfied that:

  • for parenting orders, the arrangements are in the best interests of the child or children;
  • for property orders, the arrangements are just and equitable.

Making your application

Complete the Application for Consent Orders (Form 11). The form should be completed by all parties, and the parties must sign in the space provided at the bottom of each page.

Draft consent orders

'Draft' consent orders are the orders you are proposing that the Court makes. A copy of your draft consent orders needs to accompany the consent order application.

You should include your draft consent orders in a Minute of Consent Orders.

There is more information about consent orders:

Supporting documents

The supporting documents depend on whether you are proposing parenting orders or property and financial orders.

Supporting documents - Parenting consent orders

If you are applying for parenting orders, you may also need to file the following supporting documents:

  • A copy of your marriage certificate
  • If you weren't married, a copy of your children's birth certificates
  • certified copies of any existing orders.

Supporting documents - Property and Financial consent orders

If the application is concerning property and financial issues, also file:

  • certified copies of any existing orders
  • copies of certificates of title of any real estate is to be transferred
  • copies of any binding financial agreements the parties have entered into
  • in the event superannuation splitting is proposed – include copies of the last 2 member statements for the fund being split and a letter from the superannuation fund trustee confirming they have no objection to the split.

De facto parties:

Married parties

    • a copy of your marriage certificate
    • a copy of your divorce order (if appropriate)

 

File the orders

After you have prepared all the documents and before making any copies, any affidavits need to signed in front of an authorised witness (including Parts I, K or M of the Application for Consent Orders). Remember that you need to: 

  • sign the draft consent orders the same day you sign your affidavit. Each party can sign on a different day.
  • sign each page of the draft consent orders, and date the last page.
  • file the application within 90 days of the date the first affidavit was signed.

Following the signing of the documents, they are ready to file. You also need to file copies of your signed documents, so there are enough for the parties and the Court. In particular, you need to file:

  • the original and three copies of the draft Consent Orders, certified by the applicant or a lawyer.
  • the original and two copies of:
    • your Application for Consent Orders (Form 11)
    • any affidavits or other supporting documents

Application fee

There is a fee for applying for consent orders. See the fees page for more information.

Next Steps

After your application is filed, it will be considered by a Registrar.

The Registrar will assess whether the proposed orders should be made, and 

  • if the Registrar is satisfied the orders should be made, the orders will be produced and available for you to download from the eCourts Portal.
  • if the Registrar is not satisfied, a notice will be sent to both parties requesting additional information.

More information

For more information about consent orders, see


Last updated: 14-Oct-2021

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