C is for Consent – A-Z of Family Law

Where parties involved in any sort of family law legal action decide to consent to an outcome, things can be simple, straight-forward and cost-effective.

Generally speaking, decisions in family law are ultimately made in one of two ways: by consent, or by a judicial decision-maker.

The vast majority of outcomes in family law are made by consent, whether these outcomes are without any involvement with the Court system or lawyers, following a mediation, or even on the morning of a Final Hearing.

Outcomes made by consent which are formalised through court orders can nonetheless still be reviewed, however, albeit that this rarely occurs.

The 2025 decision of Judge Parker in the Adelaide registry of the Federal Circuit and Family Court of Australia (Division 2) of Landring & Landring [2025] FedCFamC2F 147 involved such a review, of a set of interim orders made by consent.

In these proceedings, the father sought review of consent orders which, on an interim basis, saw him spending no time, nor having any communication, with the children.

The father faced various significant, serious allegations against him; some of these allegations were untested, some were supported by objective evidence, such as drug testing results, and some were argued to be substantiated through a Child Impact Report which had involved interviews with the children.

The father sought a discharge of the previous orders, and fresh orders that broadly provided for him spending supervised time with the children. The mother and the independent children’s lawyer naturally opposed the father’s aapplication.

Such an application is heard ‘de novo’ by a judge (Federal Circuit and Family Court Rules (Family Law Rules) 2021 (Cth) rule 14.07(1)); that is, from scratch. This process differs from an appeal from a decision made by a judge. Presently, the decision was made by a delegated judicial decision-maker i.e. a Senior Judicial Registrar.

Judge Parker therefore reviewed the evidence of the parties, including their affidavits, subpoena materials, and the Child Impact Report, in full. Judge Parker referred to a number of key cases that relate to interim parenting decisions in particular, including Goode & Goode, in conjunction with section 60CC of the Family Law Act 1975 (Cth) (‘the Act’).

On an interim basis, the Court typically cannot make findings of fact. On the other hand, untested evidence must nonetheless be considered, particularly where the risk of harm to the children, if such evidence is tested and proven, is high.

Some excerpts from Judge Parker follow:

• It is indisputably the case that a consent order made in an exercise of delegated judicial power can be reviewed [13].
• it is contrary to the overarching purpose, inappropriate, and insightless for the father to have consented to an order only to seek to disturb it on review shortly thereafter [13].
• where risk is alleged in interim parenting proceedings, a conservative approach that is likely to avoid harm to a child is warranted (citing Marvel & Marvel) [16].
• a court will not make an order for a child to spend time or communicate with a parent if to do so would expose the child to an unacceptable risk of harm (citing M & M) [17].

Judge Parker thoroughly considered the heads of section 60CC(2) of the Act and concluded that:

• the allegations of the father’s risk of harm to the children were serious;
• if these risks were partially or fully proven, the father would likely pose an ‘unacceptable risk’ to the children;
• although supervised time between the father and the children could reduce the risk, there remained a likelihood of harm to the children; and
• time or communication with the father was not in the children’s best interests.

Notably, the Court also considered the mother’s request for a costs against the father under section 117 of the Act.

Somewhat unsurprisingly, after a careful consideration of the relevant factors under section 117, Judge Parker concluded that a costs order was appropriate. Naturally, the father’s conduct in consenting to orders before subsequently filing an Application for Review was central to this conclusion.

Some take-aways are:

1. Agreement by consent is the quickest and most cost-effective manner of resolving family law proceedings.
2. Parties are entitled to nonetheless seek a review of orders made, even if they are by consent.
3. Parties should, however, deeply consider the likelihood of success and the reality of such an application for their children, the other party, the court, the progress of the matter, and their own costs liability.