An existing court order that pertains to property settlement, spousal maintenance or parenting may be varied because of the significant change of circumstances of a party.
A court order in a family law case attains finality unless it is appealed by either or both of the parties. It then becomes executory such that compliance becomes an obligation upon all concerned. However, there are exceptional instances when parties may apply to change or vary an existing court order.
The only acceptable reason for changing an existing court order is if there is a significant change in the circumstances of the party. Take note that the change in circumstances of the parties must be so substantial as to warrant the variation of the order. The circumstances of the party at present must be so different from what it was when the original order was made. The applicant must prove to the court that it has already become impossible to comply with the order because of his changed circumstances, that the existing order has been rendered impractical and ineffective.
The same process is followed as if the party is applying for a new order from the court. Parenting, spousal maintenance and property settlements are issues that need to undergo family dispute resolution (FDR) before the court will take cognizance of the application. So, parties have to again participate in an FDR. A certification from the FDR practitioner is necessary for the case to progress to the court.
The applicant’s affidavits and that of his witnesses are important because these will be the primary evidence of the change in circumstances. The court order sought to be varied and affidavits must be attached to the application. Then of course service and notice to the other party must be complied with.
Of course there is! Nothing will prevent you from entering into an agreement with your former de facto partner or spouse. If you want to avoid going through the hassle of a court hearing, simply talk to the other party and see if he/she is amenable to changing the existing court order. Then that’s it. A verbal agreement is cheap and fast. The downside is that it can be abused or even inadvertently forgotten.
A written agreement forges an agreement that is more binding upon the parties. The parties then become contractual parties who must abide by the terms of the agreement. The agreement is governed by Australia’s contractual laws so that an action for enforcement if there is a violation or non-compliance.
Without having to appear in court the parties can apply for consent orders based on their agreement. The effect of a consent order is the same as that of a court order.