For many people, COVID-19 has caused a great deal of uncertainty in areas that they previously regarded as stable: their income, the value of their assets, their ability to travel and even their ability to maintain social connections.
If you or someone you know has resolved parenting or financial issues with the assistance of the Family Court, it is likely that there are existing Final Orders (”Orders”) which legally bind the parties to do certain things. These Orders (unless made within the last few weeks) would not have been made in contemplation of COVID-19, and the impact that it would have upon society.
It is natural to wonder whether Orders still bind the parties, if circumstances have changed significantly due to the pandemic. The starting point is that unless a further agreement or Order has been made, the Orders remain binding. The circumstances surrounding COVID-19, and the impact upon society, do not automatically justify failing to comply with Orders. That said, a change in circumstances can form the basis upon which a party can apply to the Family Court to vary or set aside Orders.
Many Orders which relate to the parenting arrangements for children have been significantly affected by travel restrictions, isolation requirements and the changing availability of schools, contact centres or facilities specified in the Orders.
If you have Parenting Orders in place, but are having difficulties complying with the Orders, due to COVID-19, it is a good idea to first discuss the Orders with the other party, to see whether you can reach an agreement about the arrangements, to remain in place until the pandemic is over. If you are able to reach an agreement, then we would recommend formalising it in a Parenting Plan.
If an agreement cannot be reached, then consider attending a Mediation, where an independent practitioner can assist parties to explore possible solutions and help them to reach an agreement. Many Mediators are currently facilitating Mediation through Zoom.
If an agreement cannot be reached between the parties, then a party may apply to the Family Court to have the Order varied, or set aside altogether. The Family Court regards this as a serious step which is not be taken unless it can be shown that there has been a change in circumstances which justifies doing so. There is no simple rule to determine whether a specific change in circumstances will be enough to vary or set aside Orders, and careful consideration will need to be given to the individual facts before an Application is made.
Orders for property settlement can take months or even years to be fully implemented by the parties. The effect of the pandemic on incomes, share values and possibly on property prices may mean that the ultimate outcome is significantly different to the outcome contemplated when the Orders were made.
As with Parenting Orders, the first step for a party seeking to vary the implementation of existing Orders for property settlement is to ascertain whether or not the other party agrees to their proposal.
If an agreement can be reached, section 79A(1A) of the Family Law Act 1975 (Cth) (“the Act”) provides a mechanism for parties to make a joint Application to vary or set aside a previous Order for property settlement.
If no agreement can be reached, the Act also allows a party to apply to the Family Court to vary or set aside the Order on a sole basis. To do this, the Applicant must be able to establish one of the grounds set out in section 79A(1) of the Act, which include that:
- in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
- a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
If you consider that you may need to make an Application to vary or set aside a Property Order, please contact us, so that we can provide you with specific advice.
If you would like further information, or would like us to review your existing Parenting or Property Orders, please contact us and one of our experienced lawyers will be able to assist you.