There is an obligation on Family Court judges to be satisfied that any property orders they make are just and equitable, notwithstanding they are made by consent.
Section 79(2) of the Family Law Act 1975 (Cth) says that an order should only be made if it is just and equitable to do so. It is the responsibility of the Court not to act as a rubber stamp in matters where parties have reached agreement, but to be satisfied that the orders are appropriate and fair.
Pursuant to Rule 1.10 of the Family Law Rules 2004, the Court has the power to, unless a legislative provision states otherwise, make an order : “... on its own initiative, in relation to any matter mentioned in the Rules.” Namely, the Court has ultimate discretion.
Under Rule 10.17, if a party applies for a Consent Order, the court may: “...make an order in accordance with the orders sought.” However, it is noted in this rule that: “A party applying for a consent order must satisfy the Court as to why the consent order should be made.”
A Court cannot be satisfied as to whether or not Consent Orders should be made if it does not have evidence from all parties involved. A Court can make any order as it considers appropriate, however it shall not make an order in relation to property adjustment if it is not satisfied that, in all the circumstances, it is just and equitable to make the Order. A mere agreement between parties is simply not enough.
If you and your ex-partner have reached an agreement in relation to your assets and would like to formalise this by way of Family Court property Consent Orders, please contact one of our family lawyers to discuss the likelihood of the orders being made, and whether any further adjustments should occur.