Court order

Is the Court Order Set in Stone?

  |   Family Law

You have reached a point in your post-separation arrangements where the details have been put down in writing. Not only that, an order has been made by the court reflecting the way that things are to proceed across time.


The order may be in relation to financial aspects of the separation (a Financial Order), or how the children are to be cared for and organised (a Parenting Order). The wording will be clear, with dates, times, items, addresses and other particular details all clearly explained.


Yet sometimes after an order is made, one party to the separation will question how well the order applies to their situation. And for some, the idea of carrying out what is required under the order seems unfair or even impossible.


We take a look at the question of whether or not a court order can be changed, and in what circumstances, and how to handle those clauses in an order that cause you discomfort or inconvenience.


Why so strongly bound?


As two adults begin the next stage of their lives apart, the family law system in Australia recognises the need for reasonable certainty into the future. Regardless of any problems or miscommunication that might have existed in the past, courts are committed to ensuring that any arrangements set out in an order are crystal clear and fairly considered. Plus, with professional drafting, sufficient flexibility is usually included to help with minor changes.


Parties are legally bound to adhere to what is set down in the document. In fact, an Enforcement Order can be put in place in certain circumstances where the original order is contravened by a party.


This is because before the order was made, lengthy discussions, dispute resolution sessions, document collection and valuation activities will have taken place. It is assumed that a lot of work will have been carried out to fine-tune the arrangements before any application is made to the court. So once the process of discussion is complete, the court facilitates finalisation and reasonable predictability for both parties into the future. And where children are involved, the utmost care is taken to ensure that parenting responsibilities are entirely clear and are workable for your situation.


Common resistance to family law orders


There are a number of common difficulties people report once family court orders are in place. One recurring theme that can arise down the track is the feeling that an order is simply not fair – and that to follow the clauses means losing face, or having certain life activities curtailed.


But unreasonable non-compliance can be a quite serious mistake. If you fail to comply because of a general feeling of unfairness or because of emotions regarding your ex-partner, there can be significant repercussions.


You can be required to attend further dispute resolution around your contravention, which if unsuccessful, can lead to an Enforcement Order and in some cases an Enforcement Warrant. Should you fail to sign a document, a substitute signature can on occasions be used. In extreme cases, property can be sequestered, and you could even find locks changed at your residence! In any court appearance questioning non-compliance, you will be required to show a reasonable excuse for your actions.


Another noted problem with orders is when circumstances have changed and they no longer reflect reality. It can then seem that following the document to a ‘T’ no longer makes sense in the real world. This second common scenario is generally less dramatic. If circumstances have truly changed, there might well be scope for revision and/ or a new order.


Possible alteration


The family courts understand that life doesn’t stand still. In fact, if parenting arrangements change significantly, it can be advisable to have a new order drafted in this respect. Just be aware of the difference between a parenting plan and a Parenting Order, as the former will not be strictly binding.


At every turn, family law in Australia is designed to encourage people to resolve their issues and changing needs without approaching the court in every instance. If you have valid reasons for seeking a variation of an order, obtain advice on the best dispute resolution path to take in the first instance. Remember the courts will always take a dim view of people not following their legal obligations without explanation.


When we think of taking action or resisting change, it can pay to take the advice from somebody less involved. Court orders in family law should be taken seriously. Should a variation be sought, an expert family lawyer can advise you on the best approach for your individual needs.