Compromised ‘consent’ in Australian Family Law Proceedings

Miranda Kaye, Tracey Booth and Jane Wangmann

International Journal of Law, 2021, vol. 35, issue 1, ebab033.

Abstract: Most people whose relationships breakdown are able to reach agreement about parenting and financial matters outside the Australian family court system. Even for those parties who commence litigation, the emphasis remains on reaching an agreement with the vast majority of matters being resolved by consent orders rather than judicial determination. Reaching agreement in relation to parenting and property matters is stressful, and this stress is exacerbated once legal proceedings have commenced.Drawing on data from a large study that explored the experiences of self-represented litigants (SRLs) in Australian family law proceedings involving allegations about family violence, this article examines the pressures experienced by female SRLs, who are victims of family violence, to consent to orders. These pressures include: judicial pressure, lawyers’ practices, fear of their former partner, and the financial and emotional costs of litigation. These pressures are significant and can impede the extent to which these agreements can be viewed as consensual. Participants reported that these significant and intersecting pressures resulted in them ‘agreeing’ to orders that they saw as unsafe, or financial orders that were less than they were entitled to. Whilst these orders are subject to judicial scrutiny; this study raises questions about the quality and utility of resultant consent orders.

Date: 2021
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