Can a Consent Order be enforced?
Consent Orders are legally binding and enforceable just like if they had gone through the court system as a litigated matter and the court had made Consent Orders at the end of a contested final hearing. There’s not much difference between them. If either party doesn’t follow any of the provisions in the Consent Order, then the other party can appeal to the court and ask for the Consent Order to be enforced.
Most of the time, however, once there are court orders in place, both parties obey them. We’ve found that when the Consent Orders are made by Consent, the parties are generally happy to follow them since they’re based on something they agreed to back then.
It’s important to remember that a Consent Order is very different from a parenting plan. Parenting plans aren’t legally binding or enforceable, and are usually drafted so they can’t be enforced. Most people go to mediation and come up with a parenting plan they’re both happy with. Then they come to us and ask for it to be redrafted as Consent Orders, which can be enforced. Then they sign off on it and Consent Orders are obtained in accordance with their agreement.
If my ex doesn’t comply with the Consent Order, what can I do?
It is our view that wherever possible, court proceedings should be avoided, so if you find that your former partner isn’t following the Consent Orders, you should talk to them, either personally or via mediation, or even through a legal representative, to see if you can work something out so that the Consent Orders are followed. There are times, however, when this isn’t possible, and the non-defaulting party may have to file an application with the Family Court to enforce their consent order.
In essence, you have to tell the court what Consent Orders or Orders you say aren’t being complied with, and you have to support this application with an affidavit, which is your statement of how you think the Consent Order hasn’t been followed. If the other party wants to, they can respond to your application. Ultimately, the court will hear the case and decide whether or not the Consent Order has been followed. Afterwards, the court will make an order that fixes the situation so the non-defaulting party gets their remedy.
So, for example, if one party, in default of the Consent Orders, fails to pay the other party money for their interest in a property and refinance that property into their name, then the non-defaulting party might sue for a sale so they can get the money from the sale.