There is no practical difference between a court Order and a Consent Order in the sense that both are legally binding and both are legally enforceable by the Court.
The difference between the two, however, is that a Consent Order is made by agreement between the parties. That is to say, both parties are asking the Court to make the Consent Order following an agreement having been reached between them. Court Orders can either be made by consent or not by consent. If parties are in the Family Court and there are court proceedings on foot, the Court will often make Orders that either progresses the case or dictate to the parties what they are required to do, whether by way of a property settlement or in relation to the future care arrangements for their children. In the latter instance, the Court makes Orders after having heard evidence from both parties with respect to their respective positions and the outcomes being sought by each of them. Because the parties are not themselves able to reach an agreement that the Court can make Orders in accordance with, the Court imposes court Orders upon them based on the evidence that each puts before the Court, which they are then required to comply with, whether they like them or not.
So, in essence, a court Order is an Order that is made by a judge and one which is not usually negotiated between the parties. A Consent Order is a court order that contains terms that the parties have agreed to or Consented to themselves.
What is the purpose of a Consent Order?
A Consent Order formalises an agreement that has been reached between two parties to a former relationship, whether they were married or defacto, in relation to their property settlement, including spousal maintenance where appropriate and/ or the future care arrangements for their children.
Some parties do not formalise their agreement into Consent Orders. However, the risk in not formalising your agreement is that one party will change their mind or decide at a later date that they do not wish to follow it anymore. If the agreement was never formalised by way of court Order, there is no impediment to it, and no implications arise if either party simply refuses to comply with it anymore.
The purpose of a Consent Order is to formalise the agreement reached into a court Order which then makes it legally binding and enforceable in the same way as if the Court had made the Order pursuant to a contested hearing. This gives both parties the peace of mind associated with knowing that neither party can change their mind or decide that they don’t want to go along with the agreement anymore. Consent Orders also have the added advantage of neither party actually having to attend Court to get them.
A Consent Order can be enforced by a court if it is not followed. This means, for example, that if the Order says that the children are to be returned to you by a particular time on a particular date, and this does not happen, then the Court can enforce that Order. In relation to a property matter, it means, for example, that if your former partner was required to pay you a certain sum of money by a certain date and that has not happened, then you can approach the Court to enforce that Order. If all you have in relation to these examples is an agreement then there’s nothing that a court can do to assist you.
