Form 11 Application for Consent Orders

Apply for Consent Orders

Please note that this is not legal advice . You should seek legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. We recommend that you contact one of our FLNA VIPs.

What forms do I need?
Affidavit (Family Court WA) (for de facto relationships to establish jurisdiction)
 
What are consent orders? 
The Family Court encourages families in dispute to reach agreement about the care arrangements for their children, the division of property or spouse maintenance. 
If you want your agreement to become an order of the Court, you can apply for ‘Consent Orders’ to be made without having to actually go to Court. Consent Orders have the same legal effect as an order made after a Court hearing.
 
What orders cannot be sought using a Form 11?
  • Child maintenance for children covered by the Child Support (Assessment) Act, that is, those under 18 who were born after 1 October 1989 or whose parents separated after that date – this is handled by the Child Support Agency which can be contacted on 131 272 for the cost of a local call. 
  • Medical procedures. 
  • Orders under cross vesting laws. 
  • A parenting order in favour of a person who is not a parent, grandparent or other relative under Section 65G of the Family Law Act 1975 or Section 92 of the Family Court Act 1997. 
You should seek legal advice before proceeding any further with any of these types of applications. It is important that you understand the meaning and effect of the orders you are seeking. Even if you have decided to make your application without the help of a lawyer, you should obtain independent legal advice about the effect and consequences of the order you propose. 
 
What is the relevant legislation?
If you are seeking orders concerning children sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975
If you are seeking orders concerning ex-nuptial children Part 5 of the Family Court Act 1997
If you are seeking property orders sections 75 and 79 and Part VIIIB of the Family Law Act 1975
If you are seeking de facto relationship property orders section 205 of the Family Court Act 1997 and section 13A of the Interpretation Act 1984
If you are seeking an order or injunction binding a third party Part VIIIAA of the Family Law Act 1975
If you are seeking spouse maintenance orders sections 72, 74 and 75 of the Family Law Act 1975
 
What are the relevant rules?
Part 10.4 of the Family Law Rules 2004
 
What must the Court consider when making orders by consent?
The matters the Court must consider when deciding an Application for Consent Orders are set out in the Family Law Act 1975. The Court has to be satisfied that: 
  •  for parenting orders, the arrangements are proper;
  • for property orders, the arrangements are just and equitable. 
If the Court is satisfied that the orders should be made, the Court will issue the Consent Orders. Copies will be returned to you. 
 
What orders can I seek?
The orders you seek concerning your children, property or spouse maintenance will depend on the circumstances of your family.
You should seek legal advice about what orders to apply for. Generally, Consent Orders that can be made by a court fall into two categories:
  1. Parenting orders and 
  2. Financial orders. 
These include orders relating to: 
  • The person with whom the child lives – with whom the child lives, including any shared arrangements. 
  • The times that a child may spend with - 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. 
  • Child maintenance – for children not covered by the Child Support (Assessment) Act. If you are unsure contact the Child Support Agency
  • 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. 
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 interestIf you are seeking a splitting order in relation to a superannuation interest in accordance with Section 90MT of the Family Law Act 1975: 
(a) You must attach to the application a completed Superannuation Information Form in relation to that superannuation interest
(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 90MT(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 accorded procedural fairness in relation to the making of the orderThe 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. 
If the Trustee does not object to the orders sought within 28 days after receiving the notice you may file the applicationThe draft Consent Orders must contain a provision that each party and the Trustee have liberty to apply in relation to the implementation of the orders affecting the superannuation interest
You should seek legal advice, and where necessary accounting advice about these requirements. 
 
What documents must be filed?
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. 
If there has been no other case involving you at the Family Court registry in which your Application for Consent Orders is to be filed you must also file a photocopy of the following: 
 Marriage certificate or Certificate of Divorce 
 Birth certificate of each child (if you were not married and you are seeking an order about children) 
 
Do I have to disclose my financial circumstances?
You must make full disclosure of your financial circumstances. You must read Rule 13.04 of the Family Law Rules 2004. 
A failure to give full and frank disclosure has serious consequences. These consequences may include: 
  •  any consent orders being set aside; 
  • you having to pay the other party’s legal costs; 
  • your being fined; 
  • you being charged with contempt of court. 
Step by Step Guide
 
Step 1 - Draft Consent Orders
Type the orders you seek in a draft Consent OrderSet out each order sought in a separate paragraph and number each paragraph. Each page should be signed by each party and dated. 
 
Step 2 - Complete Application
Complete the Form 11 Application for Consent Orders. The application should be completed by all parties and should be typed or clearly handprinted in ink. The parties must sign the Application in the space provided at the bottom of each page. 
 
Step 3 - Special requirements
If you are applying for Consent Orders for property settlement and either party has a superannuation interest, there are special requirements which need to be met for married parties. 
If you are applying for a consent order for property settlement and an order sought will bind a third party there are special requirements which need to be met.
If you are applying for a consent order for parenting orders or orders which would vary existing parenting orders, you must consider what is in the best interests of the childYou should bear in mind that the Court is required to apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, except where the circumstances in s 61DA(2) apply. In cases where the circumstances in s 61DA(2) do not apply, and all parties are seeking a parenting order or orderwhich will provide for something different to the child’s parents having equal shared parental responsibility, you are going to have to provide information to persuade the Court that the order or orders you are seeking, is in fact in the child’s best interests
 
Step 4 - Sign
Sign each page of the draft consent orders and date the last page. Make sure you do this on the same day you swear/affirm the affidavit in Parts I, K and M. 
Note: Each party must sign both the consent orders and the affidavit on the same day. However, all the parties do not need to sign on the same day. 
 
Step 5 - Affidavits
At the end of the application at parts I & K there are affidavits which each party must complete and swear or affirm. Be careful to mark [X] all the boxes that apply to your application. You must do this before a Justice of the Peace, Notary Public or lawyer
 
Step 6 - Independent legal advice
If you have sought independent legal advice about the orders you seek, your lawyer must complete the ‘Statement of Independent Legal Advice’, contained in parts J and L of the application form. 
 
Step 7 - File
File: 
Provide extra copies of the documents for any additional parties. When filing your application may be better to personally deliver the documents to the Court so that where possible any problems with your paperwork can be attended to at the time. You must file your application within 90 days of the date of the first affidavit (see Parts I and K) otherwise the consent orders may not be made. Each party should keep copies of the completed application and the orders. 
 
Step 8 - Consideration of Application
After an Application for Consent Orders is filed a registrar will consider it. If the registrar is satisfied that the orders should be made, the registrar will sign the proposed orders and sealed copies will be sent to you. If the registrar is not satisfied, a notice will be sent to you with a brief explanation as to what you need to do. It may be necessary for your application to be heard in court. It may be necessary for your application to be heard in court. 
 
Step 9 - Superannuation splitting
If the order splits, flags or otherwise imposes an obligation on the trustee of a superannuation plan, the applicant must serve written notice of the terms of the order on 
the Trustee of the superannuation plan in which the interest is held. 
 
Please note: It is in your interests to seek legal advice.