There are many different types of agreements and orders which you can enter into or apply for in family law matters. For a complete listing of orders which you may apply to have the court hear on your behalf, visit the Family Court of Australia website.
Some of the more common orders and agreements which are used to resolve disputes between couples are listed below.
After an application for divorce has been made by one spouse or jointly, and the Court is satisfied that the grounds for divorce are established, an order called a "decree nisi for dissolution of marriage" will be granted. This order is generally referred to as the Divorce Order.
The decree nisi becomes a decree absolute after one month, finalising the divorce. It is possible to rescind a decree nisi during the one month that it is in existence and this means that the parties do not have to go through with the divorce.
Once the month has passed, the final Divorce Order is made. Both parties are then free to remarry.
Since February 13, 2010, divorce certificates are no longer issued. The Divorce Order is the proof that you are legally divorced.
If you divorced before 13th February, 2010 you can request a Divorce Certificate from the Dept. of Births, Deaths and Marriages.
This is an informal agreement which may or may not be a written agreement. It deals with how you agree to divide your assets and liabilities and cater for any ongoing financial support to each other if appropriate.
It is not legally binding and is not ratified by the court. Divorce Resource does not recommend this option.
This is a document which specifies in detail how you agree to split your assets and liabilities, including eligible superannuation. It also deals with the issue of ongoing financial support payments if appropriate.
A legally binding agreement must be drawn up by a lawyer and requires that you both take independent professional advice before signing every page.
Legally binding agreements between couples are recognised by the Family Court but there is no scrutiny of the content of the agreement when it is sealed. The onus is on you to have taken professional advice before signing.
As the name suggests, the document is legally binding. Therefore, if you have taken advice and sign the agreement, it may be difficult to overturn the agreement in future.
Interim orders are usually made in urgent cases. These orders are made on a temporary basis and last in effect until the matter can be fully resolved and other orders or final orders are made.
Generally, you cannot file an application for interim orders unless you have filed an application for final orders. Interim orders can be sought where just part of a more complex matter which is in dispute is urgent.
Examples of when interim orders may be made are when the well-being of a child or other family member is at risk, or when there is a risk that one party may be running down a business or otherwise eroding the joint asset pool.
The court will usually make interim orders to minimise the impact of the urgent threat and make final orders once the matter has been examined more closely.
In some urgent cases, the court may conduct an interim hearing on the day and make interim orders at that time.
If the matter is urgent but the court doesn't have time to hear the matter on the day of the application, then a date of hearing for the interim matter will be made.
Final Orders refers to the orders (of any type) that are made at the end of any case to finally resolve the issues.
Consent Orders (Property or Parenting)
Consent orders formalise arrangements that you and your ex-partner agree on.
Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing.
Property (Finance) Consent Orders specify the agreements you have reached by consent with regard to the split of your property and any ongoing financial maintenance payments.
Parenting Consent Orders formalise the arrangements you have agreed to for the care and financial provision for your children. You may include both property and finances in apply for Joint Consent Orders.
Consent orders are drawn up from information about your agreement which you provide to the court by way of an Application for Consent Orders. This is also referred to as a Form 11 for a property split.
The form can be completed by you, a lawyer or mediator. It is not mandatory but highly advisable to take professional legal and financial advice before signing an application for consent orders.
The court will review your application for property consent orders in relation to the four step process and the evidence you provide.
The court must be assured that the proposed property settlement is ‘just and equitable’ before it will ratify the consent orders.
For parenting consent orders, the court will review that the child is adequately provided for and that the arrangements are in the child's best interest.
If you are in full agreement and have made an application for consent orders, it is unlikely that you would have to appear in court.
If the court does have any queries regarding the details of your application, a Notice will be issued asking for clarification and in most cases, you can reply to this without attending court.
There are costs involved with lodging an application for consent orders but it is usually less expensive than drawing up a legally binding agreement.
Property (Financial) Orders
Property Orders, are final orders handed down by the court to resolve financial matters if you and your former partner cannot decide between you about arrangements for the division of your assets and liabilities and one person has made an application for property orders.
The court listens to the evidence, considers all the factors of the four step process and makes a ruling which is then ratified by the court and becomes legally binding.
Property Orders are drawn up by the court to detail the specific division of assets and liabilities, including eligible superannuation and any ongoing financial support made as per the magistrate's ruling.
Parenting Orders, are final orders made by the court, to resolve parenting matters. There are four types of parenting orders; residence orders, contact orders, specific issues orders and child maintenance orders.
These orders are only made if you cannot decide between you about arrangements for the ongoing care an provision for your children.
The court listens to the evidence, which may include evidence from affected third parties such as grandparents. Expert witnesses such as psychologists may also be asked to provide evidence.
The judicial officer considers all of the factors in terms of what is in the best interests of the child and makes a ruling which is then made into orders and becomes legally binding.
A parenting plan is an informal agreement between parents which sets out the general philosophy and approach to parenting you and your child's other parent have agreed to.
A parenting plan deals with long term matters such as education and cultural issues as well as the day-to-day matters such as bed times and approaches to disciplining.
A parenting agreement, whilst highly recommended, is not legally enforceable unless it has been specifically registered with the family court.
Child Support Agreement
This is a private agreement that you enter into with your child's other parent to formalise the arrangements for financial provision for your child outside of the Child Support Agency’s mandatory requirements.
These private child support agreements don’t require a Child Support Assessment to be in place. If you opt for a private child support agreement, there are two types, Limited and Binding.
A Limited Child Support Agreement can include periodic or lump sum payments of child support but also can provide for support in kind, such as maintenance of a family health insurance policy, payment of private education fees etc.
A Binding Child Support Agreement allows parents to set the level of child support to be paid until a terminating event occurs, such as a child turning 18 or obtaining employment.
This type of agreement is preferred by some families as the payer knows how much they will pay, and the payee knows how much they will receive.
Memorandum of Understanding
This is a term sometimes given to a document drawn up by a Family Dispute Resolution Practitioner to outline the matters which were discussed in mediation.
It gives the details of the matters which were agreed and the undertakings made to action those agreements and outlines the areas which are still in dispute.
Any report written after mediation to outline the issues discussed is not legally binding.
If you wanted to formalise such agreements you would need to file a Consent Order or draw up a Binding Financial Agreeement.
Police may make an on the spot restraining order called a Police Order in situations of family and domestic violence. A police order may be made for up to 72 hours.
A police officer cannot make a police order against a child that might affect the care and well-being of a child unless they are satisfied that appropriate arrangements have been made for their care and well-being.
A Protection Order, is a legally binding order made by the Court designed to stop threats, harassment, property damage, violence, and emotional abuse by restricting the access of the perpetrator to the victim(s).
Family Violence Protection Orders have different names from state to state:
Protection Orders (ACT/QLD)
Apprehended Violence Orders (NSW)
Restraining Orders (NT/SA)
Restraint Orders (TAS)
Intervention Orders (VIC)
Violence Restraining Orders (WA)
A family violence protection order instructs the offender to stay away from the applicant and/or to stop behaving in certain ways towards them.
It’s worded specifically to address the particular behaviour of the abuser and will vary from case to case.