Consent Orders, Binding Financial Agreements (BFA) & Binding Child Support Agreements (BCSA)
Consent orders are a written agreement between yourself and your ex-partner, that must be approved by the Family Court of Western Australia.
They are used when you have reached an agreement and want the court to turn it into formal orders, but do not require the assistance of the Family Court to make the decisions for you. When the consent orders are approved and made, they have the same effect as any other court order made by the Family Court.
Before the court will approve your proposed consent orders, it will review them and the information supplied related to your relationship to make sure that they are just and equitable.
To assess this, the court will look at financial, non-financial and homemaker and parenting contributions to the relationship made by both parties as well as each party’s current and future needs.
If you require legal advice as to the just equitability of your agreement or you require your agreed Orders drafted correctly, make an appointment with one of our lawyers at Maude Family Lawyers.
Binding Financial Agreements
An alternative to consent orders is making a binding financial agreement (BFA).
The main difference between consent orders and BFAs is that BFAs are not filed at the Family Court of WA, and therefore do not need to be approved by the Family Court.
A Binding Financial Agreement is an agreement between two or more people that is compliant with the Family Law Act 1975 (Cth).
Binding Financial Agreements cover the division of property between the parties, superannuation and/or spousal maintenance.
Another difference is that there is a strict legal requirement for both parties to a BFA to obtain independent legal advice.
In the case of consent orders, legal advice is highly recommended to ensure that you are receiving a just and equitable outcome, but is not compulsory.
With a BFA, each party’s lawyer is required to provide a certificate of independent legal advice, which is then annexed to the back of the BFA.
At Maude Family Lawyers, we can provide advice as to what is your best interests, that is whether to finalise your property matters by means of Consent Orders or by way of a BFA, as well as completing the letter of advice that is required by the legislation.
Binding Child Support Agreements (BCSA)
A Binding Child Support Agreement is difficult to terminate and it is intended to provide certainty and finality on the issue of Child Support. This agreement will continue to be binding despite a change in income, loss of employment, bankruptcy, or change in income-earning capacity.
Given the serious binding nature of the agreements, each party is required to seek independent legal advice and should carefully consider whether it is appropriate to enter into such an agreement as the agreement will continue to be in place and binding until a terminating event occurs under the agreement, such as a child turning 18 or completing secondary school.
A Binding Child Support Agreement may deal with issues such as ongoing periodic payments and also non-periodic payments such as the payment of health insurance and school fees.
Limited Child Support Agreement
A limited child support agreement is an agreement that can be in place with respect to child support payments for a period of up to three years. The agreement can be extended by the parties and can be terminated if there is an unexpected change in circumstances.
A limited child support agreement provides certainty for the paying parent and also certainty for the parent receiving funds, as well as assuring parties that the agreement will be terminated if there is an unexpected change of circumstances. Such circumstances include the paying parent unexpectedly becoming unemployed or bankrupt.
Once a limited agreement is terminated, the parties can enter into a further agreement or obtain a Child Support Assessment conducted by the agency.
A limited agreement requires parties to have a Child Support Assessment in place. The agreement must provide for an equal or greater amount of child support to be paid than the amount that has been assessed.
The agreement does not require independent legal advice to have been provided to each party prior to entering into the agreement, however is highly recommended prior to the signing of any legally binding document.
Applications to the Child Support Agency
If a parent, or an eligible non-parent carer, makes an application to the Child Support Agency, an administrative assessment is conducted. The Agency will estimate and conclude what payments are made by one or both parties.
Generally, the Agency will calculate each parent’s child support income by using a specific formula by adding their taxable income and dividing it by the percentage of care and cost of each child to meet each parent’s share of the costs for each child.
If you require legal advice or representation in any legal matter, please contact Maude Family Lawyers.