Common questions about Consent Orders

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Are Consent Orders binding and enforceable?

Yes, Consent Orders are legally binding and enforceable as if the matter had been litigated and the court had issued Consent Orders at the end of a contested final hearing. The difference is essentially non-existent therefore, if either party decides to ignore any of the provisions in the document, the other can take the matter to court and request that the Consent Order that is not being followed be enforced.

The majority of the time, however, both parties comply with court orders once they are issued. Particularly when Consent Orders have been made by Consent, we have found that the parties are generally happy to abide by them, as they are based on something they agreed to at the time.

Consent Orders regarding the future care arrangements for children are very different from parenting plans. The terms of parenting plans are neither legally binding nor enforceable. Therefore, they are often drafted in such a way that they cannot be enforced In many mediations, parenting plans are prepared that are acceptable to both parties are happy with. Then they come to us and ask us to rewrite the document in a way that can be enforced, namely as Consent Orders. Consent Orders are then obtained based on their agreement and largely in accordance with the parenting plan.

How do I enforce a Consent Order if my ex does not comply?

In our view, whenever possible, court proceedings should be avoided, so if your former partner is not complying with the Consent Orders, the first step should be to speak with them, either personally or through mediation, or even through a legal representative, to see if arrangements can be made for the order to be followed.  The non-defaulting party may have to apply to the Family Court to enforce their Consent Orders when this isn’t possible.

Essentially, you will have to outline the Consent Order or Orders that you say have not been complied with, accompanied by an affidavit that outlines how you claim the Consent Order has not been complied with. The other party will then have an opportunity to put on a Response to your application if they wish to do so. In the end the court will set the matter down for a hearing and make a determination as to whether or not the Consent Order has been complied with. The court will then make Orders that remedy the situation so that the non-defaulting party gets the remedy that they are seeking.

So, for example, if one party, in default of the Consent Orders, fails to pay the other party money for their interest in a property and to refinance that property into their name, then the non-defaulting party might pursue an application with the court that sees the property sold so that they can be paid the amount that they are entitled to from the proceeds of sale.

If you have any questions I suggest you call Kate Austin Family Lawyers in Sydney or call  their Melbourne office  

Read also: Making use of Petition Samples to Get Started

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