Can I change Family Court orders?

In short, yes you can apply to have orders varied in a limited number of situations. 

The need to vary your Court orders may arise from time to time. Everyone’s situation is unique to them and there are unforeseen circumstances that may arise during the course of your orders. 

Court Orders and why they are important 

If you have engaged the Courts to help decide the outcome of your matter it is likely that you will have been given a set of “Orders” to follow. 

These orders contain important information and set out the Court’s deliberations. These orders are mandatory to follow and serious consequences follow for individuals who do not comply with them. 

However, what happens if your circumstances change and the current Orders no longer accommodate your current situation?

What are Variations

Court orders are a set of directions that the Court has decided that the parties must follow. During the Court’s deliberations, every effort is made to ensure that situations which are likely to occur are set out in the orders.

However, there are times when unforeseen circumstances arise and the need to vary the current orders is required. 

The term “variation” relates to the changing or varying of the conditions set. In regard to Court orders, the term variation relates to the varying or changing of the orders set by the Courts.

This can occur in a number of situations, including(but not limited to): 

1. Change in circumstances such as living situations, 
2. Unforeseen medical issues, 
3. Death of a parent or child, 
4. Incarceration of a parent or child, 
5. Emergencies.

Changing Court Orders

In order to vary the existing Court orders, the following steps should be followed: 

1. If it is safe to do so and will not breach any domestic or family violence orders, contact the other parent to discuss and hopefully agree to the changes required, 
2. If the above fails, contact a mediation service to facilitate a family dispute resolution season in hopes of coming to an agreement together/ It would then be advisable to either enter into a parenting plan or lodge an application to have the new agreement made into consent orders. 
3. If the above options fail, an individual would then need to apply to the Courts to change the current orders. The Court must be satisfied that an extenuating circumstance has arisen and that the current situation was not disclosed during the original hearing.  

What is a contravention of a court order?

A contravention relates to the breach of a current Court order. Contraventions can occur either on purpose or by accident. If a contravention occurs by accident, this does not remove the liability of the breaching party.

The Court may take into consideration the surrounding circumstances which add context to the breach but genuinely does not remove the liability. 

Contraventions may occur in situations where the Court has ordered specific instructions but the other parent is eighth failing to do so or refuses to do so. Examples may include (but not limited to):

1. The Court has ordered the children be dropped off at a specific time or place and the other parent is not obeying these instructions,
2. Refusal to obey any of the current orders, 
3. The Court has ordered that both parents have access to the children or property home and the other parent is preventing that access. 
4. The Court has ordered that the matrimonial home be sold prior to a specific date and one party is delaying this from occurring. 

As discussed above, whether a party has contravened an order deliberately or on purpose, the liability attached to the contravention remains. 

If a party has contravened an order but believes they have ‘good reason’, this will still not negate the liability attached to the breach.

Mutual agreement or by Consent Order

Varying or changing current Court or consent orders can be obtained by mutual agreement in one of two ways:

1. Coming together and discussing the issues and changes to the circumstances in hopes of coming to an agreement together, 
2. Arranging an Family Dispute Resolution session in hopes of having an impartial third party to help navigate the discussion in hopes of reaching an agreement.

If an agreement is reached in either of these circumstances, it is advisable to put the agreement into writing by enacting a parenting agreement or apply to the Court to have the agreement put into a consent order. 

By applying for the Court

When negotiations break down and an agreement is not reached in either a mutual discussion or by attending a family dispute resolution session, applying to the Courts for a decision should be utilised as a last resort. 

Applying to the Courts for a variation of the current Court orders is done by lodging an initiating application, seeking vartions. Along with the initiating application, the applicant should file an affidavit that outlines clearly the circumstances of the parties involved and the reasons surrounding why the current orders are no longer appropriate.

The Court will only consider varying the orders if they are satisfied that the changes are in the best interest of the children and there must be a significant change in circumstances that were not discussed during the original application. This test was considered in Rice v Asplund 1979.

Key Takeaways

In conclusion, it is important to recognize that Court orders may need to be varied for various reasons. Failure to comply with these orders can result in negative consequences, regardless of the reasons for the breach. However, if both parties agree, the orders can be varied and documented as consent orders.

If no agreement is reached, the applicant may apply to the Court for variation. In such cases, the Court must carefully consider whether there has been a significant change in circumstances that were not disclosed during the initial hearing, and also take into account the best interest of the children, as established in the case of Rice v Asplund in 1979.