Practice Direction
No. 2 of 2003
Consent Orders Under the De Facto Relationship Act 1999
Pursuant to the Magistrates Court Act 1987 section 15AA, I issue the following Practice Direction in relation to consent orders under the De Facto Relationship Act 1999.
In future, consent orders will not be made under the De Facto Relationship Act 1999 unless the parties or their solicitors provide sufficient evidence to satisfy a magistrate that the orders should be made. That evidence may be presented in one or more affidavits. It may also be presented in an agreement as to facts pursuant to theEvidence Act 2001, s191(3)(a), which must be signed by the parties or their solicitors. Such evidence is necessary because the Act imposes various requirements whereby a magistrate must be satisfied of certain matters before an order can be made. For example, the De Facto Relationship Act, s16(1), under which property interests can be adjusted, empowers a court dealing with a property application to "make any order it considers just and equitable having regard to" a series of matters listed in pars(a) to (e) of the subsection. As a result of the wording of the subsection, a court may not make an order adjusting property interests unless it is informed as to the relevant facts, and considers the proposed order to be just and equitable. Affidavit evidence and/or a written agreement as to facts is therefore necessary. All affidavits and agreements should be as brief and concise as possible.
The requirements set out below, where applicable, must be complied with before consent orders will be made.
Cases with all Litigants Legally Represented
If each party is legally represented, consent orders will ordinarily be made on the papers by a magistrate in Chambers in the absence of the parties and their legal representatives. If a magistrate is not satisfied with the evidentiary material, the parties or their solicitors may be advised by letter as to the deficiency in that material. Alternatively, the application may be listed before a magistrate so that submissions can be made in relation to it.
Parties without Solicitors
If one or more parties are not legally represented, the application for consent orders will be listed for a short hearing before a magistrate. Each unrepresented party will have to attend court unless a magistrate directs otherwise. At the hearing, each unrepresented party will be asked whether he or she agrees to the proposed orders and considers them fair. Unless each unrepresented party attends court and confirms that he or she agrees to the proposed orders and considers them fair, the consent orders will not be made.
Dates of Cohabitation
If an order adjusting property interests under the De Facto Relationship Act is sought, the affidavit evidence and/or agreement as to facts must state the dates when the parties began and ceased living together in a de facto relationship. See ss4, 13(1) and 14.
Cohabitation for Less than Two Years
If an order adjusting property interests under the De Facto Relationship Act is sought, and the parties have lived together for less than two years, the evidentiary material must contain information sufficient to satisfy a magistrate of the matters referred to in s13(2), which reads as follows:
"(2) A court may make an order if satisfied that
(a) there is a child of the parties to the application; or
(b) the applicant
(i) has made substantial contributions of the kind referred to in section 16(1) for which the applicant would otherwise not be adequately compensated if the order were not made; or
(ii) has the care and control of a child of the respondent
and the failure to make the order would result in serious injustice to the applicant."
Property Orders "Just and Equitable"
A consent order adjusting property interests under the De Facto Relationship Act, s16(1), will not be made unless the evidentiary material is sufficient to satisfy a magistrate that the proposed order is just and equitable, having regard to the matters listed in ss16(1) and 23(1) and (2). Those provisions read as follows:
"16 (1) On an application by a de facto partner for an order to adjust interests relating to the property of either or both the de facto partners, a court may make any order it considers just and equitable having regard to
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of either or both of the de facto partners to the acquisition, conservation or improvement of any of the property; and
(b) the financial resources of either or both of the partners; and
(c) the contributions, including any contributions made in the capacity of homemaker or parent, made by a de facto partner to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of
(i) a child of the partners; or
(ii) a child accepted by either or both the partners into the household of the partners, whether or not the child is a child of either of the partners; and
(d) the nature and duration of the relationship; and
(e) any relevant matter mentioned in section 23"
"23 (1) On an application by a de facto partner for an order for maintenance, a court may make the order if satisfied that the applicant is unable to support himself or herself adequately because
(a) the partner's earning capacity has been adversely affected by the circumstances of the de facto relationship; or
(b) of any other reason arising in whole or in part from circumstances of the de facto relationship.
(2) In determining whether to make the order and in fixing any amount to be paid under the order, a court is to have regard to the following:
(a) the income, property and financial resources of each de facto partner (including the rate of any pension, allowance or benefit paid, payable or entitled to be paid to either partner) and the physical and mental capacity of each partner for appropriate gainful employment;
(b) the financial needs and obligations of each de facto partner;
(c) the responsibilities of either de facto partner to support any other person;
(d) the terms of any order made or proposed to be made under section 16;
(e) any payments provided for the maintenance of a child in the care and control of either de facto partner;
(f) whether either de facto partner has the care and control of a child of the de facto partner who is under 18;
(g) the age and state of health of each de facto partner;
(h) the standard of living that is reasonable for each de facto partner in all the circumstances;
(i) the extent to which the payment of maintenance to the de facto partner whose maintenance is under consideration would increase the earning capacity of the partner by enabling the partner
(i) to undertake a course of education or training; or
(ii) to establish a business; or
(iii) otherwise to obtain adequate income;
(j) the extent to which the de facto partner whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other partner;
(k) the length of the de facto relationship;
(l) the extent to which the de facto relationship has affected the earning capacity of the de facto partner whose maintenance is under consideration;
(m) any other fact or circumstances the court considers relevant."
Maintenance for a De Facto Partner
For an order to be made for the payment of maintenance for a de facto partner, the evidentiary material must be sufficient to satisfy a magistrate that the applicant is unable to support himself or herself adequately, either because his or her earning capacity has been adversely affected by the circumstances of the de facto relationship, or because of some other reason arising in whole or in part from the circumstances of the relationship. See s23(1), which is quoted above.
The evidentiary material must also cover such of the matters listed in s23(2), which is quoted above, as are relevant.
Discharge or Variation of Maintenance Order
A consent order for the discharge or variation of a maintenance order for a de facto partner will not be made unless the evidentiary material is sufficient to satisfy a magistrate that the order sought is justifiable because, since the original order was made or last varied, the circumstances of one party have changed, or the cost of living has changed. See s28(2). If a change to the cost of living is relied on, details of the relevant changes in the consumer price index (or other relevant statistics issued by the Australian Statistician) will need to be provided in the evidentiary material.