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Notations - Are They Enforceable in Consent Orders?

Discussion in 'Family Law Forum' started by Scooper, 29 August 2014.

  1. Scooper

    Scooper Member

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    Hi,
    I am very close to signing off on a final consent orders for childrens matters and property settlement. The order is being produced by her solicitor and he is refusing to put 3 items into the order, instead as notations claiming that the items will not be accepted by a magistrate if they form part of the body of the consent order. The items are as follows:

    1. That when the children are old enough to travel unaccompanied the level of contact the children have with the father is to be reviewed
    2. That both parties agree to file an application for divorce (in a certain timeframe)
    3. that the wife will not make any further applications for spousal maintenance (she made one but has dismissed it, I want to ensure she does not make another one)

    Firstly - I don't understand why those items cannot form part of the body of the consent order
    Secondly - If they remain notations, are they enforceable?
     
  2. rebeccag

    rebeccag Well-Known Member

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    G'day @Scooper
    Have you asked your lawyer whether s/he agrees or disagrees with her lawyer? You should have your own independent legal advice as her lawyer will be looking after her interests, rather than yours.

    From what I've been able to gather, notations add clarity to Orders, even though they aren't Orders themselves (so if the Orders are based on the notations, the notations should be clear and provide that they are to be followed). See:

    "An Order is characterized by creating an obligation on some (legal) person to do some thing within some time. The action required must always be expressed in personam (creating an obligation on a party) not in rem whereby the obligation doesn’t attach to anyone. An Order in rem cannot be enforced. A Notation is a expression included, often of the wishes or intentions of the parties, either to aid the clarity of the Orders or to provide a basis for future action, including possibly a variation of the Orders some time in the future. It is a very useful tool to defer future disagreements about the basis of which Orders are entered into". (Source: Television Education Network 'Drafting Property Consent Orders - Key Issues')
     

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